Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company as follows: (a) If the Company issues Ordinary Shares to all or substantially all holders of Ordinary Shares as a dividend or distribution, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such dividend or distribution. If any dividend or distribution of the type described in this Section 12.03(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (b) If the Company effects a subdivision or combination of Ordinary Shares, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective. (c) If the Company issues to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to such rights or warrants; and Z = the number of Ordinary Shares equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced. For purposes of this Section 12.03(c), in determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable for such Ordinary Shares, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution. (d) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, of the Company to all or substantially all the holders of the Ordinary Shares, excluding: (i) any dividends or distributions referred to in Section 12.03(a) above; (ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above; (iii) rights and warrants referred to in Section 12.03(c) above; (iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply; (v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and (vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value (as determined by the Board of Directors of the Company) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of shares of Capital Stock of any class or series, or similar Equity Interest, in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued. (e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (f) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”) (prior to giving effect to such tender or exchange offer); OS’ = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tende
Appears in 1 contract
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company subject to adjustment from time to time, without duplication, as follows:
(a) If In case the Company issues Ordinary Shares to all shall (i) pay a dividend, or substantially all holders make a distribution on its Common Stock, payable exclusively in shares of Ordinary Shares as Common Stock or other Capital Stock of the Company; (ii) subdivide or split its outstanding Common Stock into a dividend greater number of shares; (iii) combine or distributionreclassify its outstanding Common Stock into a smaller number of shares; or (iv) issue by reclassification of the shares of Common Stock any shares of the Company’s Capital Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m.immediately prior to the record date or effective date, New York City timeas the case may be, on for the Trading Day immediately preceding adjustment pursuant to this Section 9.8(a) as described below, shall be adjusted so that the Ex-Dividend Date Holder of any Notes thereafter surrendered for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; OS0 = conversion shall be entitled to receive the number of Ordinary Shares outstanding at 5:00 p.m.shares of Common Stock and/or Capital Stock which such Holder would have owned or have been entitled to receive after the happening of any of the events described above had such Notes been converted immediately prior to such record date or effective date, New York City time, on as the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distributioncase may be. Such An adjustment made pursuant to this Section 9.8(a) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for such applicable record date in the case of a dividend or distributiondistribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or reclassification of the Common Stock. If any dividend or distribution of the type described in this Section 12.03(aclause (i) above is declared but not so paid or made, the Conversion Rate shall again be adjustedimmediately readjusted, effective as of the date the Company publicly announces Board of Directors determines not to make pursue such dividend or distributionaction, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If any subdivision or split, combination or reclassification or issuance of the type described in clauses (ii) through (iv) of this Section 9.8(a) is not so made, the Conversion Rate shall again be immediately readjusted, effective as of the date the Board of Directors determines not to pursue such action, to the Conversion Rate that would then be in effect if such subdivision or split, combination or reclassification or issuance had not been declared.
(b) If In case the Company effects at any time or from time to time after the issuance of the Notes shall issue rights or warrants to all or substantially all holders of the Common Stock entitling them to subscribe for or purchase Common Stock at a subdivision price per share less (or combination having a conversion price per share less) than the Current Market Price per share of Ordinary SharesCommon Stock, the Conversion Rate will shall be adjusted based on so that the following formula: where, CR0 = same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the record date fixed for determination of stockholders entitled to receive such rights or warrants (prior to any adjustment in accordance with this Section 9.8(b)) by a fraction of which (i) the numerator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at 5:00 p.m., New York City time, the Current Market Price per share of Common Stock on the earlier of such record date and the Trading Day immediately preceding the effective ex date for such issuance of such subdivision rights or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combinationwarrants. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately prior to 9:00 a.m., New York City time, after the opening of business on the day following the record date on which such split or combination becomes effective.
(c) If for the Company issues determination of stockholders entitled to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to receive such rights or warrants; and Z = . To the number extent that shares of Ordinary Shares equal Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall immediately be readjusted to the quotient Conversion Rate which would then be in effect had the adjustments made upon the issuance of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending been made on the Trading Day basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be immediately preceding readjusted to be the Conversion Rate which would then be in effect if such record date for the determination of shareholders entitled to receive such issuance was first publicly announcedrights or warrants had not been fixed. For purposes of this Section 12.03(c), in In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Pricessuch Current Market Price, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereofwarrants, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distributionDirectors.
(dc) If In case the Company distributes shares of Capital Stockshall, evidences of its indebtedness by dividend or other assetsin a merger, including securitiesamalgamation or consolidation or otherwise, of the Company distribute to all or substantially all the holders of the Ordinary SharesCommon Stock any evidences of Indebtedness, excluding:
shares of Capital Stock of any class or series, other securities, cash or assets (excluding (i) any dividends dividend, distribution or distributions issuance covered by those referred to in Section 12.03(a9.8(a) above;
or 9.8(b) hereof, (ii) shares delivered any dividend or distribution paid exclusively in connection with subdivisions of Ordinary Shares cash referred to in Section 12.03(b9.8(d) above;
hereof or (iii) rights and warrants referred to in Section 12.03(c) above;
(iv) any dividend or distribution that constitutes a Spin-Offs Off which is covered by Section 9.8(e) hereof), or rights or warrants to which subscribe for or purchase any of its securities (including the provisions set forth below in this Section 12.03(d) shall apply;
(v) distribution of rights to all holders of Common Stock pursuant to a stockholders rights plan or the detachment of such rights under the terms of such stockholder rights plan but excluding those rights or warrants referred to in Section 9.8(b)) (any of the foregoing hereinafter in this Section 12.03(d9.8(c) below (to called the extent and as specified therein“Distributed Assets”); and
(vi) dividends or distributions referred to , then in Section 12.03(e) below. then each such case the Conversion Rate will shall be adjusted based on so that the following formula: where, CR0 = same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Trading Day immediately preceding record date fixed for determination of stockholders entitled to receive such distribution by a fraction of which (A) the Ex-Dividend Date for such distribution; CR’ = numerator shall be the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average Current Market Price per share of the Last Reported Sale Prices Common Stock and (B) the denominator shall be (1) the Current Market Price per share of Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = Common Stock less (2) the Fair Market Value on such record date (as determined in good faith by the Board of Directors Directors, whose determination shall be conclusive evidence of such Fair Market Value, and described in a certificate filed with the Trustee and the Paying Agent) of the Company) on the Ex-Dividend Date for such distribution portion of the shares Distributed Assets so distributed applicable to one share of Capital Common Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date record date for the determination of stockholders entitled to receive such distribution; provided, however, that, if (i) the Fair Market Value of the portion of the Distributed Assets so distributed applicable distribution. If “FMV” (as defined above) to one share of Common Stock is equal to or greater than “SP0” the Current Market Price of the Common Stock or (as defined above)ii) the Current Market Price of the Common Stock is greater than the Fair Market Value per share of such Distributed Assets by less than $1.00, other than in respect to a Public Spin-Offthen, in lieu of the adjustment described provided in this Section 12.03(d9.8(c), adequate provision shall be made so that each Holder of Notes shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversionthe shares of Common Stock, the kind and amount of assets (including cash)assets, shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s debt securities, as applicable, that such or rights or warrants comprising the Distributed Assets the Holder would have received if had such Holder had converted such Notes immediately prior to the record date for determining the shareholders determination of stockholders entitled to receive such distribution. With respect In the event that such distribution is not so paid or made, the Conversion Rate shall again be adjusted to an adjustment pursuant to this Section 12.03(dthe Conversion Rate which would then be in effect if such distribution had not been declared.
(d) where there has been a payment of a In case the Company shall make any distributions, by dividend or other distribution on the Ordinary Shares consists otherwise, consisting exclusively of cash to all or substantially all holders of outstanding shares of Capital Stock of any class or seriesCommon Stock, or similar Equity Interestthen, and in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Marketeach such case, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, the close of business on the Ex-Dividend Date record date fixed for the determination of holders of Common Stock entitled to receive such distribution by a fraction of which (A) the numerator shall be the Current Market Price per share of the Common Stock and (B) the denominator shall be (1) the Current Market Price per share of Common Stock minus (2) the amount per share of such distributions (appropriately adjusted from time to time for any stock dividends on or subdivisions or combination of Common Stock); provided, however, that if (i) the per share amount of such distribution will equals or exceeds the Current Market Price of the Common Stock or (ii) the Current Market Price of the Common Stock exceeds the per share amount of such distribution by less than $1.00, in lieu of the foregoing adjustment, adequate provision shall be increased based on made so that each Holder of a Note shall have the following formula: whereright to receive upon conversion, CR0 = such dividend or distribution such Holder would have received had such Holder converted each Note immediately prior to the record date for the determination of stockholders entitled to receive the distribution.
(e) In the event that the Company makes any distribution to all holders of Common Stock that constitutes a Spin-Off, the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Trading Day immediately preceding record date fixed for the Exdetermination of holders of Common Stock entitled to receive such distribution by a fraction of which (i) the numerator shall be the Spin-Dividend Date for Off Market Price per share of the Common Stock on such distribution; CR’ = record date plus the Spin-Off Market Price per Equity Interest of the Subsidiary or other business unit of the Company on such record date applicable to each share of Common Stock and (ii) the denominator shall be the Spin-Off Market Price per share of the Common Stock. The adjustment to the Conversion Rate set forth in effect on this Section 9.8(e) will occur at the Ex-Dividend Date for such distribution; FMV0 = earlier of (1) the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive 10th Trading Day period commencing onfrom, and including, the effective date of the Spin-Off; Off and MP0 = (2) the average date of the Last Reported Sale Prices Initial Public Offering of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of securities being distributed in the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to that Initial Public Offering is effected simultaneously with the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversionSpin-Off; provided, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d)however, rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances)that, which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): if (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence Spin-Off Market Price per Equity Interest of the earliest Trigger Event, whereupon such rights and warrants shall be deemed Subsidiary so distributed applicable to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per one share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) Common Stock is equal to or greater than “SP0” the Current Market Price of the Common Stock or (as defined above)ii) the Current Market Price of the Common Stock is greater than the Spin-Off Market price per Equity Interest of the Subsidiary by less than $1.00, in lieu of the adjustment described in this Section 12.03(e)foregoing adjustment, adequate provision shall be made so that each Holder of Notes a Note shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such distribution such Holder would have received if had such Holder had converted such Notes each Note immediately prior to the record date for determining the shareholders determination of stockholders entitled to receive such dividend or the distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(f) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to In case a tender offer or exchange offer made by the Company or any Subsidiary shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of its Subsidiaries for all or any portion consideration per share of the Ordinary Shares, to the extent that the Common Stock having a Fair Market Value (as determined below) in good faith by the Company’s Board of Directors, whose determination shall be conclusive and described in a resolution of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price Board of Ordinary Shares on the Trading Day immediately after Directors) that as of the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer time (the “Expiration DateTime”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) exceeds the Closing Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate by a fraction,
(i) the numerator of which shall be the sum of (x) the Fair Market Value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the “Purchased Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) at the Expiration Time and the Closing Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time”, and
(ii) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Closing Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, such adjustment to become effective immediately prior to giving effect the opening of business on the day following the Expiration Time. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer); OS’ = , but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again immediately be readjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made.
(g) Upon conversion of the Notes, the Holders shall receive, if they receive shares of Common Stock, in addition to the Common Stock issuable upon such conversion, the rights issued under any shareholder rights plan the Company implements (notwithstanding the occurrence of an event causing such rights to separate from the Common Stock at or prior to the time of conversion) unless, prior to conversion, the rights have expired, terminated or been redeemed or exchanged in accordance with the rights plan. If, and only if, the Holders of Notes receive rights under such shareholder rights plans as described in the preceding sentence upon conversion of their Notes, then no other adjustment pursuant to this Section 9.8 shall be made in connection with such shareholder rights plans.
(h) For purposes of this Section 9.8, the number of Ordinary Shares shares of Common Stock at any time outstanding immediately after shall not include shares held in the Expiration Time treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(after giving effect solely i) Notwithstanding any of the foregoing, in no event shall the Conversion Rate as adjusted pursuant to such tendethis Section 9.8 exceed 41.2881 shares of Common Stock issuable upon conversion per $1,000 principal amount of Notes, other than on account of proportional adjustments to the Conversion Rate in the manner set forth in paragraphs (a) through (c) of this Section 9.8.
Appears in 1 contract
Sources: Indenture (Aar Corp)
Adjustments to Conversion Rate. The If the number of Ordinary Shares represented by each ADS is changed, after the date of this Note, for any reason other than one or more of the events described in this Section 5.3, the Company shall make an appropriate adjustment to the Conversion Rate such that the number of Ordinary Shares represented by the ADSs upon which conversion of the Note is based remains the same. In addition, the Conversion Rate shall be adjusted from time to time by the Company as follows:
(a) If In case the Company issues shall, at any time or from time to time while the Note is outstanding, pay a dividend in Ordinary Shares (directly or in the form of ADSs) or make a distribution in Ordinary Shares to all or substantially all holders of Ordinary Shares as a dividend or distributionShares, then the Conversion Rate will shall be adjusted based on the following formula: where, where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such dividend or distribution; CR’ CR1 = the Conversion Rate in effect on the Exex-Dividend Date dividend date for such dividend or distribution; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such dividend or distribution; and OS’ OS1 = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distribution. Such Any adjustment made pursuant to this Section 5.3(a) shall become effective immediately prior to 9:00 a.m., New York City time, on the Exex-Dividend Date dividend date for such dividend or distribution. If any dividend or distribution that is the subject of the type described in this Section 12.03(a5.3(a) is declared but not so paid or made, the Conversion Rate shall again be adjustedimmediately readjusted, effective as of the date the Board of Directors of the Company (the “Board of Directors”) publicly announces its decision not to pay or make such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. For purposes of this Section 5.3(a), the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the trading day immediately preceding the ex-dividend date for such dividend or distribution shall not include Ordinary Shares held in treasury, if any. The Company will not pay any dividend or make any distribution on Ordinary Shares held in treasury, if any.
(b) If In case outstanding Ordinary Shares (directly or in the Company effects form of ADSs) shall be subdivided or split into a subdivision or combination greater number of Ordinary SharesShares or combined or reverse split into a smaller number of Ordinary Shares (in each case, other than in connection with a transaction to which Section 5.4 applies), the Conversion Rate will shall be adjusted based on the following formula: where, where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the effective date of such subdivision or combination; CR’ CR1 = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the effective date of such subdivision or combination; and OS’ OS1 = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such Any adjustment made pursuant to this Section 5.3(b) shall become effective immediately prior to 9:00 a.m., New York City time, on the effective date on which of such split subdivision or combination becomes effectivecombination.
(c) If In case the Company issues shall issue rights (other than rights issued pursuant to a shareholders’ rights plan or a dividend or distribution on Ordinary Shares in Ordinary Shares as set forth in (a) above) or warrants to all or substantially all the holders of its Ordinary Shares any rights (whether direct or warrants (in the form of ADSs), other than pursuant an issuance in connection with a transaction to any rights plan described in which Section 12.03(d)(iii) below) 5.4 applies, entitling them to purchase, for a period of not more than 45 expiring within forty-five (45) calendar days after of the date of the announcement for such issuance, Ordinary Shares (directly or in the form of ADSs) at an aggregate a price per share Ordinary Share less than the average of the Last Reported Closing Sale Prices of the ADSs divided by the number of Ordinary Shares then represented by each ADS during the 10 ten (10) consecutive Trading Day trading day period ending on the Trading Day trading day immediately preceding the ex-dividend date such issuance was first publicly announcedfor the distribution, then the Conversion Rate will shall be adjusted based on the following formula: where, where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such issuance; CR’ CR1 = the Conversion Rate in effect on the Exex-Dividend Date dividend date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such issuance; Y X = the total number of Ordinary Shares issuable (directly or in the form of ADSs) pursuant to such rights or warrants; and Z Y = the number of Ordinary Shares equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants warrants, divided by (y) the average of the Last Reported Closing Sale Prices of Ordinary Shares the ADSs during the 10 ten (10) consecutive Trading Day trading day period ending on the Trading Day trading day immediately preceding the ex-dividend date for such issuance was first publicly announcedissuance. For purposes of Any adjustment made pursuant to this Section 12.03(c)5.3(c) shall become effective immediately prior to 9:00 a.m., in determining whether any rights or warrants entitle New York City time, on the Holders to subscribe for or purchase Ordinary Shares at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable ex-dividend date for such Ordinary Shares, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Companyissuance. If any rights or warrants of the type described in this Section 12.03(a5.3(c) are not so issued, the Conversion Rate shall again be immediately readjusted, effective as of the date the Company Board of Directors publicly announces its decision not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right To the extent that such rights or warrant described in this Section 12.03(c) is warrants are not exercised or converted prior to their expiration or Ordinary Shares are otherwise not delivered pursuant to such rights or warrants upon the expiration exercise of the exercisability such rights or convertibility thereofwarrants, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of Ordinary Shares actually delivered. In determining the aggregate price payable to exercise such rights and warrants, there shall be taken into account any consideration received by the Company for such rights or warrants and the value of such consideration (if such right or warrant had not been so issuedother than cash, to be determined in good faith by the Board of Directors). Any adjustment made pursuant to For purposes of this Section 12.03(c) shall become effective immediately prior to 9:00 a.m.5.3(c), the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Extrading day immediately preceding the ex-Dividend Date dividend date for the applicable distributionsuch issuance shall not include Ordinary Shares held in treasury, if any. The Company will not issue any such rights or warrants in respect of Ordinary Shares held in treasury, if any.
(d) If In case the Company distributes shares shall, by dividend or otherwise, distribute to all or substantially all holders of Capital Stock, its outstanding Ordinary Shares (whether direct or in the form of ADSs) of any class of capital stock of the Company or evidences of its indebtedness or other assets, assets (including securities, of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
but excluding (i) any dividends or distributions referred to in Section 12.03(a) above;
5.3(a), (ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) any rights and or warrants referred to in Section 12.03(c5.3(c), (iii) above;
any dividends or distributions referred to in Section 5.3(e), (iv) any dividends or distributions in connection with a transaction to which Section 5.4 applies, or (v) any Spin-Offs to which the provisions set forth below in this Section 12.03(d5.3(d) shall apply;
applies) (v) any of the rights or warrants referred to foregoing hereinafter in this Section 12.03(d5.3(d) below (to called the extent and as specified therein“Distributed Assets”); and
(vi) dividends or distributions referred to , then, in Section 12.03(e) below. then each such case, the Conversion Rate will shall be adjusted based on the following formula: where, where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such distribution; CR’ CR1 = the Conversion Rate in effect on the Exex-Dividend Date dividend date for such distribution; SP0 = the average of the Last Reported Closing Sale Prices of the ADSs multiplied by the number of Ordinary Shares over then represented by each ADS during the 10 ten (10) consecutive Trading Day trading day period ending on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such distribution; and FMV = the Fair Market Value (as determined by the Board of Directors of the Company) fair market value on the Exex-Dividend Date dividend date for such distribution of the shares of Capital Stock, evidences of indebtedness, or assets, including securities, Distributed Assets so distributed, expressed as an amount per distributed applicable to one (1) Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to determined in good faith by the record date for determining Board of Directors. In the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) event where there has been a payment of a dividend or other distribution on the Ordinary Shares consists (directly or in the form of ADSs) or shares of Capital Stock capital stock of any class or series, or similar Equity Interestequity interest, in of or relating to a Subsidiary or other business unit of the Company (a “Spin-Off”), ) that are, or, or when issued, will be, traded or listed on the New York Stock Exchange, the Nasdaq Stock Global Market, the New York Stock Exchange Nasdaq Global Select Market or any other U.S. national securities exchange or market (a “Public Spin-Off”)market, then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will shall instead be increased adjusted based on the following formula: where, where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such distribution; CR’ CR1 = the Conversion Rate in effect on the Exex-Dividend Date dividend date for such distribution; FMV0 = the average of the Last Reported Closing Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares Distributed Assets applicable to one share of (1) Ordinary Shares Share during the 10 ten consecutive Trading Day trading day period commencing on, on and including, including the effective date of the Spin-OffOff (the “Spin-Off Valuation Period”); and MP0 = the average of the Last Reported Closing Sale Prices of the ADSs multiplied by the number of Ordinary Shares then represented by each ADS during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-OffOff Valuation Period. Such Any adjustment made pursuant to this Section 5.3(d) shall become effective immediately prior to 9:00 a.m., New York City time, on the Exex-Dividend Date dividend date for such distribution. If any such dividend or distribution of the type described in this Section 12.03(d5.3(d) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Company Board of Directors publicly announces its decision not to make pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights Rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares (whether direct or in the form of ADSs) entitling the holders thereof to subscribe for or purchase shares of Capital Stock the Company’s capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) 5.3 (and no adjustment to the Conversion Rate under this Section 5.3 will be required required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d5.3(d), except as set forth under Section 12.06. If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Note, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10rights. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 5.3 was made, (aA) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, repurchase and (bB) in the case of such rights or warrant warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued. No adjustment of the Conversion Rate shall be made pursuant to this Section 5.3(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed to a holder upon conversion of this Note.
(e) If any dividends or other distributions by In case the Company consisting exclusively of cash shall pay a dividend or otherwise distribute to all or substantially all holders of its Ordinary Shares (direct or in the form of ADSs) a dividend or other than dividends distribution of exclusively cash excluding (i) any dividend or distributions made distribution in connection with the liquidation, dissolution or winding-winding up of the Company), whether voluntary or involuntary and (ii) any dividend or distribution in connection with a transaction to which Section 5.4 applies, then the Conversion Rate will shall be adjusted based on the following formula: where, where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such dividend or distribution; CR’ CR1 = the Conversion Rate in effect on the Exex-Dividend Date dividend date for such dividend or distribution; SP0 = the average of the Last Reported Closing Sale Prices of the ADSs multiplied by the number of Ordinary Shares then represented by each ADS during the 10 ten (10) consecutive Trading Day trading day period ending on, and including, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such dividend or distribution; and C DIV = the amount in cash per share of Ordinary Shares that Share the Company pays as a dividend or otherwise distributes to holders of its Ordinary Shares. An Any adjustment to the Conversion Rate made pursuant to this Section 12.03(e5.3(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Exex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution of the type described in this Section 12.03(d5.3(e) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Company Board of Directors publicly announces its decision not to make pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(f) If In case of purchases of the Company or any of its Subsidiaries purchases Ordinary Shares (directly or in the form of ADSs) pursuant to a tender offer or exchange offer made by the Company or any Subsidiary of its Subsidiaries the Company for all or any portion of the Ordinary SharesShares (directly or indirectly in the form of ADSs), to the extent that the Fair Market Value (fair market value, as determined below) in good faith by the Board of the Directors, of cash and any other consideration included in the payment per Ordinary Share, Share (or equivalent payment per Ordinary Share represented by the ADSs) exceeds the Last reported Closing Sale Price of Ordinary Shares the ADSs divided by the number of ADSs then represented by each ADS on the Trading Day immediately after trading day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (as it may be amended) (the “Expiration Date”), as it may be amended, the Conversion Rate will shall be adjusted based on the following formula: where, where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ CR1 = the Conversion Rate in effect immediately after 5:00 p.m., New York City time, on the Trading Day immediately following the Expiration Date; AC FMV = the Fair Market Value (as determined by the Board of Directors of the Company) fair market value, on the Expiration Date, of the aggregate value of all cash and any other consideration paid or payable for the Ordinary Shares (directly or indirectly in the form of ADSs) validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”) (prior to giving effect to such tender or exchange offer); OS’ = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tendea
Appears in 1 contract
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted from time to time (successively and for each event described) by the Company as follows:
(a1) If the Company issues Ordinary Shares shall, at any time or from time to all or substantially all holders time while any of Ordinary Shares the Securities are outstanding, issue shares of Common Stock as a dividend or distributiondistribution on shares of Common Stock, or if the Company effects a share split or share combination in respect of the Common Stock, then the Conversion Rate will shall be adjusted based on the following formula: where, where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the Close of Business on the Trading Day immediately preceding the Ex-Dividend Record Date for such dividend or distribution, or, if no Record Date, immediately prior to the effective date of such share split or share combination, as applicable; CR’ = the new Conversion Rate in effect immediately after the Close of Business on the Ex-Dividend Record Date for such dividend or distribution, or, if no Record Date, immediately prior to the effective date of such share split or share combination, as applicable; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, immediately prior to the Close of Business on the Trading Day immediately preceding the Ex-Dividend Record Date for such dividend or distribution, or, if no Record Date, immediately prior to the effective date of such share split or share combination, as applicable; and OS’ = the number of Ordinary Shares that would be shares of Common Stock outstanding immediately after, and solely as a result of, after such dividend or distribution, or, if no Record Date, immediately after the Close of Business on the effective date of such share split or share combination, as applicable. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, after the Close of Business on the Ex-Dividend Record Date fixed for such dividend or distribution, or, if no Record Date, immediately prior to the opening of business on the effective date for such share split or share combination. If any dividend or distribution of the type described in this Section 12.03(a10.02(1) is declared but not so paid or made, or the outstanding shares of Common Stock are not split or combined, as the case may be, the Conversion Rate shall again be adjustedimmediately readjusted, effective as of the date the Company publicly announces Board of Directors determines not to make pay such dividend or distribution, or split or combine the outstanding shares of Common Stock, as the case may be, to the Conversion Rate that would then be in effect if such dividend dividend, distribution, share split or distribution share combination had not been declared. The Company shall not pay any dividend or make any distribution on shares of Common Stock held in treasury by the Company.
(b2) If Except as otherwise provided for by Section 10.02(3) below, if the Company effects a subdivision shall, at any time or combination from time to time while any of Ordinary Sharesthe Securities are outstanding, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues distribute to all or substantially all the holders of Ordinary Shares its outstanding shares of Common Stock any options, rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after from the date Record Date of the announcement such distribution to subscribe for such issuance, Ordinary Shares or purchase shares of Common Stock at an aggregate a price per share less than the average Closing Price of the Last Reported Sale Prices Common Stock on the Trading Day immediately preceding the Record Date of such distribution, the Conversion Rate shall be adjusted based on the following formula: where CR0 = the Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such distribution; CR’ = the new Conversion Rate in effect immediately after the Close of Business on the Record Date for such distribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Close of Business on the Record Date for such distribution; X = the total number of shares of Common Stock issuable pursuant to such options, rights or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such options, rights or warrants divided by the average Closing Price of the Ordinary Shares during Common Stock over the 10 consecutive Trading Day period ending on the Trading Day Record Date. Such adjustment shall be successively made whenever any such options, rights or warrants are distributed and shall become effective immediately preceding after the Close of Business on the record date for such issuance was first publicly announceddistribution. To the extent that shares of Common Stock are not delivered pursuant to any such options, then rights or warrants that are non-transferable upon the expiration or termination of such options, rights or warrants, the Conversion Rate will shall be adjusted based on the following formula: where, CR0 = readjusted to the Conversion Rate that would then be in effect at 5:00 p.m.had the adjustments made upon the distribution of such options, New York City time, rights or warrants been made on the Trading Day immediately preceding basis of the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = delivery of only the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number shares of Ordinary Shares issuable pursuant to such rights or warrants; and Z = the number of Ordinary Shares equal to the quotient of (x) Common Stock actually delivered. In determining the aggregate price payable to exercise such options, rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced. For purposes of this Section 12.03(c), in determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable for such Ordinary Shareswarrants, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined in good faith by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distributionDirectors.
(d3) If the Company distributes shares of Capital StockCompany, evidences of its indebtedness at any time or other assets, including securities, from time to time while any of the Company Securities are outstanding, shall, by dividend or otherwise, distribute to all or substantially all the holders of its Common Stock shares of any class of Capital Stock of the Ordinary SharesCompany (other than Common Stock as covered by Section 10.02(1)), excluding:
evidences of its indebtedness, assets, property or rights or warrants to acquire Capital Stock or other securities, but excluding (i) any dividends or distributions referred as to in which an adjustment under Section 12.03(a10.02(1), Section 10.02(2) above;
or Section 10.02(4) hereof shall apply and (ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions provision set forth below in this Section 12.03(d10.02(3) shall apply;
apply (v) the any of such shares of Capital Stock, indebtedness, assets, property or rights or warrants referred to acquire Common Stock or other securities, hereinafter in this Section 12.03(d10.02(3) below (to called the extent and as specified therein“Distributed Property”); and
(vi) dividends or distributions referred to , then, in Section 12.03(e) below. then each such case the Conversion Rate will shall be adjusted based on the following formula: where, where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the Close of Business on the Trading Day immediately preceding the Ex-Dividend Record Date for such distribution; CR’ = the new Conversion Rate in effect immediately after the Close of Business on the Ex-Dividend Record Date for such distribution; SP0 = the average Closing Price of the Last Reported Sale Prices of Ordinary Shares Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Record Date for such distribution; and FMV = the Fair Market Value fair market value (as determined in good faith by the Board of Directors Directors) of the Company) portion of Distributed Property with respect to each outstanding share of Common Stock on the Ex-Dividend Record Date for such distribution of the shares of Capital Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Sharedistribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, after the Close of Business on the Ex-Dividend Record Date for the applicable such distribution. If ; provided that if “FMV” (as defined above) set forth above is equal to or greater than “SP0” (SP0 as defined set forth above), other than in respect to a Public Spin-Off, then in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversionforegoing adjustment, the kind and Company shall distribute to each holder of Securities on the date such Distributed Property is distributed to holders of Common Stock, but without requiring such holder to convert its Securities, the amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that Distributed Property such Holder holder would have received if had such Holder had converted such Notes immediately prior holder owned a number of shares of Common Stock equal to the record date product of (a) the Conversion Rate on the Record Date fixed for determining the determination for shareholders entitled to receive such distributiondistribution and (b) the principal amount of such capitalized Security. If the Board of Directors determines “FMV” for purposes of this Section 10.02(3) by reference to the actual or when issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the average Closing Price of the Common Stock for purposes of calculating SP0 in the formula in this Section 10.02(3). With respect to an adjustment pursuant to this Section 12.03(d10.02(3) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists Common Stock consisting of shares of Capital Stock of any class or series, or similar Equity Interestequity interest, in of or relating to a Subsidiary or other business unit of the Company (a “Spin-Off”), that are, or, when issued, will be, traded or listed the Conversion Rate in effect immediately before the Close of Business on the Nasdaq Stock Market10th Trading Day immediately following, and including, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public effective date of the Spin-Off”), then Off shall be increased based on the following formula: where CR0 = the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, the Close of Business on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the 10th Trading Day immediately preceding following the Exeffective date of the Spin-Dividend Date for such distributionOff; CR’ = the new Conversion Rate in effect immediately after the Close of Business on the Ex10th Trading Day immediately following the effective date of the Spin-Dividend Date for such distributionOff; FMV0 FMV = the average of the Last Reported Sale Closing Prices of the Capital Stock or similar Equity Interests equity interest distributed to holders of Ordinary Shares Common Stock applicable to one share of Ordinary Shares during Common Stock over the 10 consecutive Trading Day period commencing onimmediately following, and including, the effective date of the Spin-Off; and MP0 = the average Closing Price of the Last Reported Sale Prices of Ordinary Shares during Common Stock over the 10 consecutive Trading Day period commencing oncalculated immediately following, and including, the effective date of the Spin-Off. Such adjustment shall occur on the 10th Trading Day from, and including, the effective date of the Spin-Off. In the event that a Conversion Date occurs within the 10 Trading Days from, and including, the effective date of the Spin-Off, such Conversion Date shall be delayed until the conclusion of such 10 Trading Day period without further action by the Company. For purposes of this Section 10.02(3), Section 10.02(1) and Section 10.02(2) hereof, any dividend or distribution to which this Section 10.02(3) is applicable that also includes shares of Common Stock to which Section 10.02(1) hereof applies, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 10.02(1) or 10.02(2) hereof applies (or both), shall be deemed instead to be (i) a dividend or distribution of the evidences of indebtedness, assets or shares of Capital Stock other than such shares of Common Stock or rights or warrants to which Section 10.02(1) or 10.02(2) hereof applies (and any Conversion Rate adjustment required by this Section 10.02(3) with respect to such dividend or distribution shall then be made) immediately followed by (ii) a dividend or distribution of such shares of Common Stock or such options, rights or warrants to which Section 10.02(1) or 10.02(2) hereof applies (and any further Conversion Rate adjustment required by Section 10.02(1) and 10.02(2) hereof with respect to such dividend or distribution shall then be made), except (A) the Close of Business on the Record Date of such dividend or distribution shall be substituted for “the Close of Business on the Record Date,” “the Close of Business on the Record Date or the effective date,” “after the Close of Business on the Record Date for such dividend or distribution or the effective date of such share split or share combination” and “the Close of Business on the Record Date for such distribution” within the meaning of Section 10.02(1) and Section 10.02(2) hereof and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed “outstanding immediately prior to the Close of Business on the Record Date or the Close of Business on the effective date” within the meaning of Section 10.02(1) hereof.
(4) In case the Company shall pay dividends or make distributions consisting exclusively of cash to all or substantially all holders of its Common Stock, the Conversion Rate shall be adjusted based on the following formula: Where CR0 = the Conversion Rate in effect immediately prior to the Record Date for such distribution; CR’ = the new Conversion Rate in effect immediately after the Record Date for such distribution; SP0 = the Closing Price of Common Stock on the Trading Day immediately preceding the Record Date for such distribution; and C = the amount in cash per share distributed to holders of Common Stock in such distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, the opening of business on the Ex-Dividend Record Date for such dividend or distribution; provided that if the portion of the cash so distributed applicable to one share of the Common Stock is equal to or greater than SP0 as set forth above, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of Securities shall receive on the date on which such cash dividend is distributed to holders of Common Stock, the amount of cash such holder would have received had such holder owned a number of shares equal to the product of (a) Conversion Rate on the Record Date for such distribution and (b) the principal of such Security, without being required to convert the Securities. If any such dividend or distribution described in this Section 12.03(d) is declared but not so paid or made, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding For the delivery requirements set forth under Section 12.02avoidance of doubt, for purposes of this subsection (4), in the event of any reclassification of the Common Stock, as a result of which the Securities become convertible into more than one class of Common Stock, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversionsubsection (4), delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for references in this Section 12.03(d). For purposes 10.02 to one share of Conversion Rate adjustments pursuant Common Stock or Closing Price of one share of Common Stock shall be deemed to this Section 12.03(d), rights refer to a unit or warrants distributed by to the Company to all or substantially all holders price of Ordinary Shares entitling a unit consisting of the holders thereof to subscribe for or purchase number of shares of Capital each class of Common Stock (either initially or under certain circumstances), into which rights or warrants, until the occurrence Securities are then convertible equal to the numbers of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with shares of such Ordinary Shares; (ii) are not exercisable; and (iii) are also class issued in respect of future issuances one share of Ordinary Shares, Common Stock in such reclassification. The above provisions of this paragraph shall be deemed not similarly apply to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issuedsuccessive reclassifications.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(f5) If the Company makes a payment of cash or any other consideration in respect of its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary SharesCommon Stock, to the extent that the Fair Market Value (as determined below) of the where such cash and the value of any such other consideration included in the payment per Ordinary Share, share of Common Stock validly tendered or exchanged exceeds the Last reported Sale Closing Price of Ordinary Shares the Common Stock on the Trading Day immediately after next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time which tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended), the “Expiration Time”) (prior to giving effect to such tender or exchange offer); OS’ = Conversion Rate shall be increased based on the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tendefollowing formula:
Appears in 1 contract
Adjustments to Conversion Rate. The Conversion Rate shall will be adjusted by subject to adjustment in the Company as followsfollowing events:
(a) If the Company exclusively issues Ordinary Shares to all or substantially all holders of Ordinary Shares as a dividend or distributiondistribution on the Ordinary Shares, or if the Company effects a share split or share combination, the Conversion Rate will shall be adjusted based on the following formula: where, : CR0 = =the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Trading Day immediately preceding Record Date for the Ex-Dividend Date ADSs for such dividend or distribution; CR’ = , or immediately prior to the open of business on the effective date of such share split or share combination, as applicable; CR1 =the Conversion Rate in effect immediately after the close of business on such Record Date or immediately after the Ex-Dividend Date for open of business on such dividend or distribution; effective date, as applicable; OS0 = =the number of Ordinary Shares outstanding at 5:00 p.m.immediately prior to the close of business on such Record Date or immediately prior to the open of business on such effective date, New York City timeas applicable; and OS1 =the number of Ordinary Shares outstanding immediately after giving effect to such dividend, distribution, share split or share combination. Any adjustment made under this Section 7.3(a) shall become effective immediately after the close of business on the Trading Day immediately preceding Record Date for the Ex-Dividend Date ADSs for such dividend or distribution; and OS’ = , or immediately after the number open of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, business on the Ex-Dividend Date effective date for such dividend share split or distributionshare combination, as applicable. If any dividend or distribution of the type described in this Section 12.03(a7.3(a) is declared but not so paid or made, the Conversion Rate shall again be adjustedimmediately readjusted, effective as of the date the Company publicly announces Board of Directors determines not to make pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company effects a subdivision or combination of Ordinary Shares, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of the Ordinary Shares (directly or in the form of ADSs) any rights rights, options or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchasethem, for a period of not more than 45 calendar days after the announcement date of the announcement for such issuance, to subscribe for or purchase Ordinary Shares (directly or in the form of ADSs) at an aggregate a price per share Ordinary Share that is less than the average of the Last Reported Sale Prices of the Ordinary Shares during or the ADSs, as the case may be (divided by, in the case of the ADSs, the number of Ordinary Shares then represented by one ADS), for the 10 consecutive Trading Day period ending on on, and including, the Trading Day immediately preceding the date of announcement of such issuance was first publicly announcedissuance, then the Conversion Rate will shall be adjusted increased based on the following formula: where, : CR0 = =the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Trading Day immediately preceding the Ex-Dividend Record Date for the ADSs for such issuance; CR’ = issuance; CR1 =the Conversion Rate in effect immediately after the close of business on the Ex-Dividend Date for such issuance; Record Date; OS0 = =the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, immediately prior to the close of business on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = Record Date; X=the total number of Ordinary Shares issuable (directly or in the form of ADSs) deliverable pursuant to such rights rights, options or warrants; warrants; and Z = Y=the number of Ordinary Shares equal to the quotient of (xi) the aggregate price payable to exercise such rights rights, options or warrants warrants, divided by (yii) the quotient of (a) the average of the Last Reported Sale Prices of Ordinary Shares during the ADSs over the 10 consecutive Trading Day period ending on on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants divided by (b) the number of Ordinary Shares then represented by one ADS. Any increase made under this Section 7.3(b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the close of business on the Record Date for the ADSs for such issuance. To the extent that Ordinary Shares or ADSs are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of Ordinary Shares actually delivered (directly or in the form of ADSs). If such rights, options or warrants are not so issued, or if no such rights, options, or warrants are exercised prior to their expiration, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such the Record Date for the ADSs for such issuance was first publicly announcedhad not occurred. For purposes of this Section 12.03(c7.3(b), in determining whether any rights rights, options or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares (directly or in the form of ADSs) at a price per Ordinary Share that is less than the such average of the applicable Last Reported Sale PricesPrices of the Ordinary Shares or the ADSs, as the case may be (divided by, in the case of the ADSs, the number of Ordinary Shares then represented by one ADS), for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement for such issuance, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary SharesShares or ADSs, there shall be taken into account any consideration received by the Company for such rights rights, options or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distributionDirectors.
(dc) If the Company distributes shares of its Capital Stock, evidences of its indebtedness indebtedness, other assets or other assets, including securities, property of the Company or rights, options or warrants to acquire its Capital Stock or other securities, to all or substantially all the holders of the Ordinary SharesShares (directly or in the form of ADSs), excluding:
excluding (i) any dividends, distributions or issuances as to which an adjustment was effected pursuant to Section 7.3(a) or Section 7.3(b), (ii) dividends or distributions referred paid exclusively in cash as to in which an adjustment was effected pursuant to Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
7.3(d), and (iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs as to which the provisions set forth below in this Section 12.03(d7.3(c) shall apply;
apply (v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for any of such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value (as determined by the Board of Directors of the Company) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, other assets or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities property or rights, options or warrants to acquire Capital Stock or options to purchase other securities of the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of shares of Capital Stock of any class or series, or similar Equity Interest, in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-OffDistributed Property”), then the Conversion Rate shall be increased based on the following formula: CR0 =the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, the close of business on the Ex-Dividend Record Date of for the distribution will be increased based on the following formula: where, CR0 = ADSs for such distribution; CR1 =the Conversion Rate in effect at 5:00 p.m., New York City time, immediately after the close of business on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = Record Date; SP0 =the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders ADSs (divided by the number of Ordinary Shares applicable to then represented by one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(dADS) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend distribution; and FMV =the fair market value (as determined by the Board of Directors) of the Distributed Property with respect to each outstanding Ordinary Share (directly or in the form of ADSs) on the Record Date for the ADSs for such distribution; and C = . Any increase made under the amount in cash per share foregoing portion of Ordinary Shares that this Section 7.3(c) above shall become effective immediately after the Company pays as a dividend close of business on the Record Date for the ADSs for such distribution. If such distribution is not so paid or otherwise distributes to holders of Ordinary Shares. An adjustment made, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the adjustment been made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for basis of only distribution, if any, actually paid or made, if such distribution had not been declared. Notwithstanding the applicable dividend or distribution. If foregoing, if “CFMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e)foregoing increase, each Holder of Notes a Note shall be entitled to receive upon conversionreceive, in addition to respect of each $100,000 principal amount thereof held by such Holder on the Record Date, at the same time and upon the same terms as holders of the Ordinary Shares, and, if applicable, cash payable on conversionShares (directly or in the form of ADSs) receive the Distributed Property, the amount and kind of cash that Distributed Property such Holder would have received if such Holder had converted such Notes immediately prior owned a number of Ordinary Shares (directly or in the form of ADSs) equal to the record date Conversion Rate in effect on the Record Date for determining the shareholders entitled ADSs for the distribution. With respect to receive such an adjustment pursuant to this Section 7.3(c) where there has been a payment of a dividend or distribution. If other distribution on the Ordinary Shares (directly or in the form of ADSs) of shares of Capital Stock of any such dividend class or distribution described in this Section 12.03(d) is declared but not paid series, or madesimilar equity interest, of or relating to a Subsidiary or other business unit of the Company, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(f) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted increased based on the following formula: where, : CR0 = =the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Expiration Date; CR’ = last Trading Day of the Valuation Period; CR1 =the Conversion Rate in effect immediately after the close of business on the last Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on Valuation Period; FMV0 =the Expiration Date, average of the aggregate value Last Reported Sale Prices of all cash and other consideration paid the Capital Stock or payable for similar equity interest distributed to holders of the Ordinary Shares validly tendered (directly or exchanged in the form of ADSs) applicable to one Ordinary Share (determined by reference to the definition of Last Reported Sale Price as set forth in Section 1.1 as if references therein to the Ordinary Shares (directly or in the form of ADSs) were to such Capital Stock or similar equity interest) over the first 10 consecutive Trading Day period after, and not withdrawn as including, the Ex-Dividend Date of the Expiration Date; OS0 = Spin-Off (the “Valuation Period”); and MP0 =the average of the Last Reported Sale Prices of the ADSs (divided by the number of Ordinary Shares outstanding immediately before then represented by one ADS) over the last time tenders or exchanges may be made pursuant Valuation Period. The adjustment to such tender or exchange offer (the “Expiration Time”) (prior to giving effect to such tender or exchange offer); OS’ = Conversion Rate under the number of Ordinary Shares outstanding preceding paragraph shall occur immediately after the Expiration Time close of business on the last Trading Day of the Valuation Period; provided that in respect of any conversion during the Valuation Period, references in the portion of this Section 7.3(c) related to Spin-Offs to 10 Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date of such Spin-Off to, and including, the Conversion Date in determining the Conversion Rate. For purposes of this Section 7.3(c), rights, options or warrants distributed by the Company to all holders of the Ordinary Shares (after giving effect solely directly or in the form of ADSs) entitling them to subscribe for or purchase shares of the Company’s Capital Stock, including Ordinary Shares (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such tendeOrdinary Shares (directly or in the form of ADSs); (ii) are not exercisable; and
Appears in 1 contract
Sources: Announcement
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company as follows:follows (provided that in no event will adjustments to the Conversion Rate solely by reason of clauses (d) or (f) below result in a Conversion Rate that exceeds [ ] shares per $1,000 principal amount of Securities, subject to adjustment as provided herein):
(a) If the Company issues Ordinary Shares to all or substantially all holders shares of Ordinary Shares Common Stock as a dividend or distributiondistribution on shares of the Common Stock, or effects a share split or share combination, the Conversion Rate will be adjusted based on the following formula: CR’=CR0 x OS’ —— OS0 where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding the Exex-Dividend Date dividend date for such dividend or distribution; , or the effective date of such share split or share combination, as the case may be CR’ = the Conversion Rate in effect on immediately after the Exex-Dividend Date dividend date for such dividend or distribution; , or the effective date of such share split or share combination, as the case may be OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for prior to such dividend or distribution; , or the effective date of such share split or share combination, as the case may be, and OS’ = the number of Ordinary Shares that would be shares of Common Stock outstanding immediately after, and solely as a result of, after the such dividend or distribution, or the effective date of such share split or share combination, as the case may be. Such adjustment shall become effective immediately prior to after 9:00 a.m., New York City time, on the Ex-Dividend Date Business Day following the date fixed for such determination. The Company will not pay any dividend or distributionmake any distribution on shares of Common Stock held in treasury by the Company. If any dividend or distribution of the type described in this Section 12.03(a12.2(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. As used in this Section 12.2, “ex-dividend date’’ means the first date on which the shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive the issuance or distribution in question.
(b) If the Company effects issues to all or substantially all holders of its Common Stock any rights or warrants entitling them for a subdivision period of not more than 60 calendar days from the record date of such distribution to subscribe for or combination purchase shares of Ordinary SharesCommon Stock, at a price per share less than the Last Reported Sale Price of Common Stock on the Business Day immediately preceding the date of announcement of such issuance, the Conversion Rate will be adjusted based on the following formula: formula (provided that the Conversion Rate will be readjusted to the extent that such rights or warrants are not exercised prior to their expiration): CR’= CR0 x OS0+X ———— OS0+Y where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date prior to announcement of such subdivision or combination; issuance CR’ = the Conversion Rate in effect on the effective date immediately after announcement of such subdivision or combination; issuance OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m.immediately prior to announcement of such issuance X = the total number of shares of Common Stock issuable pursuant to such rights or warrants, New York City time, and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights divided by the average of the Last Reported Sale Prices of Common Stock over the 10 consecutive Trading Day period ending on the Trading Business Day immediately preceding the effective date ex-dividend for the issuance of such subdivision rights or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combinationwarrants. Such adjustment shall be successively made whenever any such rights or warrants are issued and shall become effective immediately prior to after 9:00 a.m., New York City time, on the Business Day following the date on which fixed for such split or combination becomes effective.
(c) If the determination. The Company issues to all or substantially all the holders of Ordinary Shares shall not issue any rights such rights, options or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period respect of shares of Common Stock held in treasury by the Company. To the extent that shares of Common Stock are not more than 45 calendar days delivered after the date expiration of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to such rights or warrants; and Z = , the number of Ordinary Shares equal Conversion Rate shall be readjusted to the quotient Conversion Rate that would then be in effect had the adjustments made upon the issuance of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending been made on the Trading Day immediately preceding basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such date fixed for the determination of stockholders entitled to receive such issuance was first publicly announcedrights or warrants had not been fixed. For purposes of this Section 12.03(c), in In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable such Last Reported Sale PricesPrice, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distributionDirectors.
(dc) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, assets or property of the Company to all or substantially all the holders of the Ordinary SharesCommon Stock, excluding:
(i) any dividends or distributions and rights or warrants referred to in Section 12.03(aclause (a) or (b) above;
(ii) shares delivered dividends or distributions paid exclusively in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;cash; and
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) any Spin-Offs Off to which the provisions set forth below in this Section 12.03(dclause (c) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: CR’= CR0 x SP0 ———— SP0 – FMV where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding the Exex-Dividend Date dividend date for such distribution; distribution CR’ = the Conversion Rate in effect on immediately after the Exex-Dividend Date dividend date for such distribution; distribution SP0 = the average of the Last Reported Sale Prices of Ordinary Shares the Common Stock over the 10 consecutive Trading Day period ending on the Trading Business Day immediately preceding the Exex-Dividend Date dividend date for such distribution; and FMV = the Fair Market Value fair market value (as determined by the Board of Directors of the CompanyDirectors) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, assets or assets, including securities, so distributed, expressed as an amount per Ordinary Shareproperty distributed with respect to each outstanding share of Common Stock on the ex-dividend Date for such distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date Business Day following the date fixed for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu determination of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders stockholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(dclause (c) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of Common Stock or shares of Capital Stock of any class or series, or similar Equity Interestequity interest, in of or relating to a Subsidiary or other business unit (a “Spin-Spin- Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then ) the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at before 5:00 p.m., New York City time, on the tenth Trading Day immediately preceding following, and including, the Exeffective date of the spin-Dividend Date for such distribution; off will be increased based on the following formula: CR’ = CR0 x FMV0 + MP0 ————— MP0 where, CR0 = the Conversion Rate in effect immediately prior to the tenth Trading Day immediately following, and including, the effective date of the spin-off CR’ = the Conversion Rate in effect on immediately after the Extenth Trading Day immediately following, and including, the effective date of the spin-Dividend Date for such distribution; off FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests equity interest distributed to holders of Ordinary Shares Common Stock applicable to one share of Ordinary Shares during Common Stock over the first 10 consecutive Trading Day period commencing on, and including, after the effective date of the Spin-Off; , and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during Common Stock over the first 10 consecutive Trading Day period commencing onafter the effective date of the Spin-Off. Such adjustment shall occur on the tenth Trading Day from, and including, the effective date of the Spin-Off. Such adjustment shall become As a result, any conversion within the ten Trading Days following the effective immediately prior date of any Spin-Off will be deemed not to 9:00 a.m., New York City time, on have occurred until the Exend of the ten-Dividend Date for such distribution. Trading Day period.
(d) If any such cash dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company made to all or substantially all holders of Ordinary Shares entitling the holders thereof Common Stock during any quarterly fiscal period other than regular quarterly cash dividends that do not exceed $0.09 per share (appropriately adjusted from time to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of time in a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment manner inversely proportional to the Conversion Rate will be required until the occurrence adjustments of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment Conversion Rate) (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company“Initial Dividend Rate”), the Conversion Rate will be adjusted based on the following formula: CR’ = CR0 x SP0 ——— SP0 – C where, CR0 = the Conversion Rate in effect at immediately prior to the ex-dividend date for such distribution CR’ = the Conversion Rate in effect immediately after the ex-dividend date for such distribution SP0 = the Last Reported Sale Prices of the Common Stock on the Trading Day immediately preceding the ex-dividend date for such distribution, and C = the amount in cash per share the Company distributes to holders of Common Stock in excess of the Initial Dividend Threshold, in the case of a regular quarterly dividend, or, in the case of any other dividend or distribution, the full amount of such dividend or distribution. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date record date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares provided that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not so paid or made, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(fe) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to makes a payment in respect of a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary SharesCommon Stock, to the extent that the Fair Market Value (as determined below) of if the cash and value of any other consideration included in the payment per Ordinary Share, share of Common Stock exceeds the Last reported Reported Sale Price of Ordinary Shares the Common Stock on the Trading Day immediately after next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (such last date, the “Expiration DateTime”), as it may be amended, the Conversion Rate will be adjusted increased based on the following formula: CR’ = CR0 x AC + (SP’ x OS’) ———————— OS0 x SP’ where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; day immediately following the date such tender or exchange offer expires CR’ = the Conversion Rate in effect on the Trading Day second day immediately following the Expiration Date; date such tender or exchange offer expires AC = the Fair Market Value aggregate value of all cash and any other consideration (as determined by the Board of Directors of the CompanyDirectors) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered shares purchased in such tender or exchanged and not withdrawn as of the Expiration Date; exchange offer OS0 = the number of Ordinary Shares shares of Common Stock outstanding immediately before prior to the last time tenders or exchanges may be made pursuant to date such tender or exchange offer (the “Expiration Time”) (prior to giving effect to such tender or exchange offer); expires OS’ = the number of Ordinary Shares shares of Common Stock outstanding immediately after the Expiration Time date such tender or exchange offer expires SP’ = the average of the Last Reported Sale Prices of Common Stock over the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made. If, however, the application of the foregoing formulas (after giving other than the formula set forth in clause (a) would result in a decrease in the Conversion Rate, no adjustment to the Conversion Rate will be made. Except as stated herein, the Company will not adjust the Conversion Rate for the issuance of shares of Common Stock or any securities convertible into or exchangeable for shares of Common Stock or the right to purchase shares of Common Stock or such convertible or exchangeable securities.
(f) If a Securityholder elects to exchange its notes in connection with a specified corporate transaction pursuant to paragraph 8 of the Securities that occurs prior to June 1, 2018, and the corporate transaction also constitutes a Fundamental Change, the Conversion Rate shall be increased by an additional number of shares of Common Stock (the “Additional Shares”) as described below during the period from and including the effective date of the Fundamental Change to and including the Trading Day prior to the related Fundamental Change Purchase Date, provided that if the Stock Price is greater than $___or less than $___(subject in each case to adjustment as described below), the number of Additional Shares shall be zero. Any conversion occurring at a time when the Securities would be convertible in light of the expected or actual occurrence of a Fundamental Change will be deemed to have occurred in connection with such Fundamental Change notwithstanding the fact that a Security may then be convertible because another condition to conversion has been satisfied. The Company shall provide notice of the occurrence of a Fundamental Change having such effect solely no later than 25 calendar days prior to the anticipated Effective Date (or if only determinable subsequent to such tendedate, then as promptly as can be determined subsequent to such 25th calendar day) The number of Additional Shares will be determined by reference to the table attached as Schedule A hereto, based on the date on which such Fundamental Change occurs or becomes effective (the “Effective Date”) and the Stock Price with respect to such Fundamental Change; provided that if the Stock Price is between two Stock Price amounts in the table or the Effective Date is between two Effective Dates in the table, the number of Additional Shares will be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Stock Price amounts and the two dates, as applicable, based on a 365-day year. The Stock Prices set forth in the first row of the table in Schedule A hereto and set forth in the first paragraph of this Section 12.2(f) will be adjusted as of any date on which the Conversion Rate of the Securities is adjusted pursuant to this Section 12.2. The adjusted Stock Prices will equal the Stock Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares will be adjusted in the same manner as the Conversion Rate as set forth in this Section 12.2.
(g) Notwithstanding the foregoing provisions of this Section 12.2, no adjustment shall be made thereunder, nor shall an adjustment be made to the ability of Holders of a Security to convert, for any distribution described therein if the Holders will otherwise participate in the distribution without conversion of the Securities.
(h) The Company may (but is not required to) make such increases in the Conversion Rate, in addition to those required by clauses (a) through (f) of this Section 12.2 as the Board of Directors considers to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock in connection with a dividend or distribution of shares (or rights to acquire shares) or any similar event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of at least 20 days if the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive.
(i) No adjustment to the Conversion Rate need be made:
(1) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in shares of Common Stock under any plan;
(2) upon the issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Company or any of its Subsidiaries;
(3) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security not des
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Sources: Indenture (Trinity Industries Inc)
Adjustments to Conversion Rate. The applicable Conversion Rate shall be adjusted by the Company as follows:
(a) If the Company issues Ordinary Shares to all or substantially all holders shares of Ordinary Shares Common Stock as a dividend or distributiondistribution on shares of the Common Stock, or effects a share split or share combination, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect open of business on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be; OS0 CR' = the number new Conversion Rate in effect immediately after the open of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, business on the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be; OS0 = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be; and OS' = the number of shares of Common Stock outstanding immediately after such dividend or distribution, or the effective date of such share split or share combination, as the case may be. Such adjustment shall become effective immediately after (i) the open of business on Ex-Dividend Date for such dividend or distribution or (ii) open of business on the date on which such split or combination becomes effective, as applicable. If any dividend or distribution of the type described in this Section 12.03(a12.02(a) is declared but not so paid or made, the new Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company effects distributes to all holders of its Common Stock any rights or warrants entitling them to purchase, for a subdivision or combination period of Ordinary Sharesnot more than 45 days after the Ex-Dividend Date for the distribution, shares of Common Stock at a price per share less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the open of business on the Trading Day immediately preceding the effective date of Ex-Dividend Date for such subdivision or combinationdistribution; CR’ ' = the new Conversion Rate in effect immediately after the open of business on the effective date of Ex-Dividend Date for such subdivision or combinationdistribution; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding Ex-Dividend Date for such distribution; X = the effective date total number of shares of Common Stock issuable pursuant to such subdivision rights or combinationwarrants; and OS’ Y = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, shares of Common Stock equal to the aggregate price payable to exercise such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than divided by the average of the Last Reported Sale Prices of the Ordinary Shares during Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to such rights or warrants; and Z = the number of Ordinary Shares equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announceddistribution. For purposes of this Section 12.03(c12.02(b), in determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable for such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declaredDirectors. If any right or warrant described in this Section 12.03(c12.02(b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c12.02(b) shall become effective immediately prior to 9:00 a.m., New York City time, after the open of business on the Ex-Dividend Date for the applicable distribution.
(dc) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, assets or property of the Company to all or substantially all the holders of the Ordinary SharesCommon Stock, excluding:
(i) any dividends or distributions referred to in Section 12.03(aclause (a) or (b) above;
(ii) shares delivered dividends or distributions paid exclusively in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;cash; and
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(dclause (c) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the open of business on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ ' = the new Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the average of the Fair Market Value Values (as determined by the Board of Directors of the CompanyDirectors) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, assets or assets, including securities, so distributed, expressed as an amount per Ordinary Shareproperty distributed with respect to each outstanding share of Common Stock over the 10 consecutive Trading-Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, after the open of business on the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(dclause (c) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of Common Stock or shares of Capital Stock of any class or series, or similar Equity Interestequity interest, in of or relating to a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, be traded or listed quoted on the Nasdaq Stock Market, the New York Stock Exchange any United States national or any other U.S. national regional securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect open of business on the Ex-Dividend Date for such dividend or distributionthe Spin-Off; SP0 CR' = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Ordinary Shares during Capital Stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the first 10 consecutive Trading Day period ending onafter, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distributionthe Spin-Off (the “Valuation Period”); and C MP0 = the amount in cash per share average of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders Last Reported Sale Prices of Ordinary SharesCommon Stock over the Valuation Period. An The adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m.under the preceding paragraph will occur after the open of business on the day after the last day of the Valuation Period, New York City time, but will be given effect as of the open of business on the Ex-Dividend Date for the applicable dividend or distributionSpin-Off. If “C” Because the adjustment to the Conversion Rate will be made at the end of the Valuation Period with retroactive effect, the Company will delay the settlement of any Securities where the final day of the related Conversion Period occurs during the Valuation Period. In such event, the Company will pay any cash and deliver any shares of Common Stock due upon conversion (based on the adjusted Conversion Rate as defined above) is equal to or greater than “SP0” (as defined described above), in lieu on the third Business Day immediately following the last day of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distributionValuation Period. If any such dividend or distribution described in this Section 12.03(dclause (c) is declared but not paid or made, the new Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(fd) If the Company any cash dividend or any distribution is made to all holders of its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amendedCommon Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the open of business on the Ex-Dividend Date for such distribution; CR' = the new Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such distribution; SP0 = the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and C = the amount in cash per share of Common Stock of the Company distributes to holders of Common Stock. An adjustment to the Conversion Rate made pursuant to this clause (d) shall become effective immediately after the open of business on the Ex-Dividend Date for the applicable dividend or distribution. If any dividend or distribution described in this clause (d) is declared but not so paid or made, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(e) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Last Reported Sale Price of the Common Stock over the 10 consecutive Trading Day period (the “Averaging Period”) commencing on, and including, the Trading Day immediately following the last date (the “Expiration Date; CR’ ”) on which tenders or exchanges may be made pursuant to such tender offer or exchange offer, the Conversion Rate will be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Trading Day immediately following the Expiration Date; AC CR' = the Fair Market Value (as determined by Conversion Rate in effect immediately following the Board open of Directors of business on the Company) on Trading Date immediately following the Expiration Date, of ; AC = the aggregate value of all cash and any other consideration (as determined in good faith by the Board of Directors) paid or payable for the Ordinary Shares validly tendered shares purchased in such tender offer or exchanged and not withdrawn exchange offer as of the Expiration DateDate (the “Purchased Shares”); OS0 = the number of Ordinary Shares shares of Common Stock outstanding immediately before as of the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Timeexpiration time”) including any Purchased Shares; OS' = the number of shares of Common Stock outstanding at the expiration time (less any Purchased Shares); and SP' = the average of the Last Reported Sale Prices of Common Stock during the Averaging Period. Any adjustment to the Conversion Rate under this clause (e) will be made immediately prior to giving the open of business on the day following the last day of the Averaging Period, but will be given effect as of the open of business on the Trading Day immediately following the Expiration Date. Because the adjustment to the Conversion Rate will be made at the end of the Averaging Period with retroactive effect, the Company will delay the settlement of any Securities where the final day of the related Conversion Period occurs during the Averaging Period. In such event, the Company will pay any cash and deliver any shares of Common Stock due upon conversion (based on the adjusted Conversion Rate as described above) on the third Business Day immediately following the last day of the Averaging Period. If the Company or one of its Subsidiaries is obligated to purchase Common Stock pursuant to any such tender or exchange offeroffer but are permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Conversion Rate shall be readjusted to be the Conversion Rate that would be in effect if such tender or exchange offer had not been made.
(f) Without limiting the foregoing provisions of this Section 12.02, no adjustment will be made thereunder, nor shall an adjustment be made to the ability of a Holder to convert, for any distribution described therein if the Holder will otherwise participate in the distribution without conversion of such Holder’s securities as if such Holder held a number of shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holder, without having to convert its Securities. Further, if the application of the foregoing formulas in this Section 12.02 would result in a decrease in the Conversion Rate, no adjustment to the Conversion Rate will be made (except on account of share combinations).
(g) No adjustment to the Conversion Rate will be made unless as specifically set forth in this Section 12.02 and Section 12.03.
(h) Without limiting the foregoing, no adjustment to the Conversion Rate need be made:
(i) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in shares of Common Stock under any plan;
(ii) upon the issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present or future employee, director or consultant benefit plan or program or employee stock purchase plan of or assumed by the Company or any of its Subsidiaries;
(iii) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security not described in clause (ii) above and outstanding as of the Issue Date;
(iv) for a change in the par value of the Common Stock;
(v) for accrued and unpaid interest (including any Additional Interest); OSor
(vi) upon the issuance of any shares of Common Stock pursuant to the warrants contemplated by the Offering Memorandum.
(i) No adjustment to the Conversion Rate will be required unless the adjustment would require an increase or decrease of at least 1% of the Conversion Rate. If the adjustment is not made because the adjustment does not change the Conversion Rate by at least 1%, then the adjustment that is not made will be carried forward and taken into account in any future adjustment and the Company will make such carried forward adjustment, regardless of whether the aggregate adjustment is less than 1%, (1) with respect to any converted Securities, on each Trading Date in any relevant Conversion Period and (2) immediately prior to any Fundamental Change Repurchase Date. All required calculations will be made to the nearest cent or 1/1000th of a share, as the case may be.
(j) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officers’ = Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until a Trust Officer of the Trustee shall have received such Officers’ Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Rate to the Holder of each Security at such Holder’s last address appearing on the Securities Register provided for in Section 2.05 of this Indenture within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
(k) For purposes of this Section 12.02, the number of Ordinary Shares shares of Common Stock at any time outstanding immediately after shall not include shares held in the Expiration Time treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. If the Company pays any dividend or makes any distribution on, or issues any rights, options or warrants in respect of, shares of Common Stock held in treasury by the Company, the Company shall not issue, transfer or convey such shares of Common Stock in a manner that would have the effect of circumventing the provisions of this Section 12.02.
(after giving effect solely to such tendel) Whenever any provision of this Article 12 requires a calculation of Last Reported Sale Prices, VWAP, Daily Conversion Values or Daily Settlement Amounts over or based on a span of multiple days (including a Conversion Perio
Appears in 1 contract
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company as follows:described below, except that the Company shall not make any adjustments to the Conversion Rate if the Company, at its election and subject to Section 15.02(j), provides for the Holders of the Notes to participate (as a result of holding the Notes, and at the same time as holders of the Common Stock participate) in any of the transactions described below in Section 15.02(a) (but only with respect to stock dividends or distributions), (b), (c) or (d) as if such Holders of the Notes held a number of shares of the Common Stock equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holders, without having to convert their Notes.
(a) If the Company issues Ordinary Shares to all or substantially all holders shares of Ordinary Shares Common Stock as a dividend or distributiondistribution on shares of the Common Stock, or effects a share split or share combination of the Common Stock, the Conversion Rate will shall be adjusted based on the following formula: CR1 = CR0 × OS1 OS0 where, CR0 = the Conversion Rate in effect immediately prior to the opening of business on the Ex-Dividend Date of such dividend or distribution, or the effective date of such share split or share combination, as applicable; CR1 = the Conversion Rate in effect immediately after the opening of business on the Ex-Dividend Date for such dividend or distribution or the effective date of such share split or combination, as applicable; OS0 = the number of shares of Common Stock outstanding immediately prior to the opening of business on such Ex-Dividend Date or effective date, as applicable; and OS1 = the number of shares of Common Stock outstanding immediately after the opening of business on such Ex-Dividend Date or effective date, as applicable, after giving effect to such dividend, distribution, share split or share combination. Such adjustment shall become effective immediately after the opening of business on the Ex-Dividend Date for such dividend or distribution or the effective date for such share split or share combination. The Company shall not pay any dividend or make any distribution on shares of Common Stock held in treasury by the Company. If any dividend or distribution of the type described in this Section 15.02(a) is declared but not so paid or made, or the outstanding shares of Common Stock are not split or combined, as the case may be, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution or to effect such split or combination, to the Conversion Rate that would then be in effect if such dividend, distribution, share split or share combination had not been declared or announced.
(b) If the Company distributes to holders of all or substantially all of the Common Stock any rights, options or warrants (other than any distribution pursuant to a stockholders’ rights plan or in connection with an event constituting a Reorganization Event) entitling them for a period of not more than 45 calendar days from the date of such distribution to subscribe for or purchase shares of Common Stock at 5:00 p.m.a price per share less than the average of the Last Reported Sale Prices of the Common Stock for the ten consecutive Trading Day period ending on the Trading Day immediately preceding the declaration date of such distribution, New York City timethe Conversion Rate shall be increased based on the following formula: CR1 = CR0 × OS0+X OS0+Y where, CR0 = the Conversion Rate in effect immediately prior to the opening of business on the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect immediately after the opening of business on the Ex-Dividend Date for such distribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the opening of business on the Ex-Dividend Date for such distribution; X = the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants divided by the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such dividend distribution. Such adjustment shall become effective immediately after the opening of business on the Ex-Dividend Date for such distribution. The Company shall not issue any such rights, options or distributionwarrants in respect of shares of Common Stock held in treasury by the Company. In the event that such rights, options or warrants described in this Section 15.02(b) are not so issued, the Conversion Rate shall be readjusted, effective as of the date the Board of Directors publicly announces its decision not to issue such rights, options or warrants to the Conversion Rate that would then be in effect if such issuance had not been declared. To the extent that such rights, options or warrants are not exercised prior to their expiration or shares of the Common Stock are otherwise not delivered pursuant to such rights, options or warrants upon the exercise of such rights, options or warrants, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights, options or warrants been made on the basis of the delivery of only the number of shares of the Common Stock actually delivered. In determining the aggregate price payable for such shares of the Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants and the value of such consideration (if other than cash, to be determined by the Board of Directors in good faith).
(c) If the Company distributes shares of capital stock of the Company, evidences of its indebtedness or other assets or property of the Company to holders of all or substantially all of the Common Stock, excluding:
(i) dividends or distributions and rights or warrants as to which an adjustment was effected pursuant to Section 15.02(a) or (b) above;
(ii) dividends or distributions paid exclusively in cash;
(iii) as described below in this subsection (c) with respect to Spin-Offs; CR’ and
(iv) dividends or distributions in connection with an event constituting a Reorganization Event; then the Conversion Rate shall be increased based on the following formula: CR1 = CR0 × SP0 SP0-FMV where, CR0 = the Conversion Rate in effect immediately prior to the opening of business on the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect immediately after the opening of business on Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Board of Directors in good faith) of the shares of capital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock as of the open of business on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the opening of business on the Ex-Dividend Date for such distribution. With respect to an adjustment pursuant to this Section 15.02(c) where there has been a payment of a dividend or other distribution on the Common Stock in shares of capital stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit that are, or, when issued, will be, traded or quoted on any national or regional securities exchange or market (a “Spin-Off”), the Conversion Rate shall be increased based on the following formula: CR1 = CR0 × FMV0+MP0 MP0 where, CR0 = the Conversion Rate in effect immediately prior to the opening of business on the Ex-Dividend Date for the Spin-Off; CR1 = the Conversion Rate in effect immediately after the opening of business on the Ex-Dividend Date for the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the capital stock or similar equity interest distributed to holders of the Common Stock applicable to one share of the Common Stock over the first ten consecutive Trading Day period immediately following, and including, the Ex-Dividend Date for the Spin-Off (such period, the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period. Such adjustment to the Conversion Rate under the preceding paragraph shall become effective at the close of business on the last day of the Valuation Period and shall be applied on a retroactive basis from, and including, the opening of business on the Ex-Dividend Date for the Spin-Off. If the Ex-Dividend Date for the Spin-Off is less than ten Trading Days prior to, and including, the end of the Observation Period in respect of any conversion of Notes, if applicable, references within the preceding paragraph to ten Trading Days shall be deemed replaced, for purposes of calculating the Conversion Rate for the affected Conversion Payment Trading Days of the Observation Period in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for the Spin-Off to, and including, the last Conversion Payment Trading Day of such Observation Period. For purposes of determining the Conversion Rate adjustment pursuant to this clause, in respect of any conversion during the ten Trading Days commencing on the Ex-Dividend Date for any Spin-Off, references within the preceding paragraph related to “Spin-Offs” to ten Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for such Spin-Off to, but excluding, the relevant Conversion Date. In the event that such distribution described in this Section 15.02(c) is not so made, the Conversion Rate shall be readjusted, effective as of the date the Board of Directors publicly announces its decision not to pay such dividend or distribution, to the Conversion Rate that would then be in effect if such distribution had not been declared.
(d) If the Company makes a dividend or distribution consisting exclusively of cash to holders of all or substantially all of the Common Stock (excluding any annual cash dividend on the Common Stock to the extent that such annual cash dividend per share of the Common Stock in any calendar year does not exceed $0.25 (the “Dividend Threshold”) and any consideration paid as described below in Section 15.02(e) with respect to tender or exchange offers), the Conversion Rate shall be increased based on the following formula: CR1 = CR0 ▇▇▇ ▇▇▇–C where, CR0 = the Conversion Rate in effect immediately prior to the opening of business on the Ex-Dividend Date for such dividend or distribution; OS0 CR1 = the number Conversion Rate in effect immediately after the opening of Ordinary Shares outstanding at 5:00 p.m., New York City time, business on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and OS’ C = the number amount in cash per share the Company distributes to holders of Ordinary Shares the Common Stock in excess of the Dividend Threshold. The Dividend Threshold is subject to adjustment in a manner inversely proportional to adjustments to the Conversion Rate; provided that would no adjustment shall be outstanding immediately aftermade to the Dividend Threshold for any adjustment made to the Conversion Rate pursuant to this Section 15.02(d). In the case of a cash distribution that is not an annual cash dividend, and solely as a result of, the Dividend Threshold shall be deemed to be zero. In the event that such dividend or distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such dividend or distribution. If any dividend or distribution of the type described in this Section 12.03(a15.02(d) is declared but not so paid or made, the Conversion Rate shall again be adjustedreadjusted, effective as of the date the Company Board of Directors publicly announces its decision not to make pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(be) If the Company effects or any of its Subsidiaries makes a subdivision payment in respect of a tender or combination exchange offer for Common Stock, to the extent that the cash and value of Ordinary Shares, any other consideration included in the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price payment per share less than of Common Stock exceeds the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to such rights or warrants; and Z = the number of Ordinary Shares equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced. For purposes of this Section 12.03(c), in determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable for such Ordinary Shares, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution.
(d) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
(i) any dividends or distributions referred to in Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value (as determined by the Board of Directors of the Company) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of shares of Capital Stock of any class or series, or similar Equity Interest, in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 ten consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(f) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Date”), the Conversion Rate shall be increased based on the following formula: CR1 = CR0 × AC+(SP1×OS1) OS0×SP1 where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Trading Day next succeeding the Expiration Date; CR1 = the Conversion Rate in effect immediately after the open of business on the Trading Day next succeeding the Expiration Date; AC = the fair market value (as determined by the Board of Directors in good faith), on the Expiration Date, of the aggregate value of all cash and any other consideration paid or payable for shares accepted for purchase or exchange in such tender or exchange offer; OS0 = the number of shares of the Common Stock outstanding immediately prior to the time (the “Expiration Time”) such tender or exchange offer expires (prior to giving effect to such tender offer or exchange offer); OS’ OS1 = the number of Ordinary Shares shares of the Common Stock outstanding immediately after the Expiration Time (after giving effect solely to such tendetender offer or exchange offer); and SP1 = the average of the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period commencing on the Trading Day next succeeding the Expiration Date. Such adjustment to the Conversion Rate under this Section 15.02(e) shall become effective at the close of business on the tenth Trading Day from, and including, the Trading Day next succeeding the Expiration Date and shall be applied on a retroactive basis from, and including, the open of business on the Trading Day next succeeding the Expiration Date. If the Trading Day next succeeding the Expiration Date is less than ten Trading Days prior to, and including, the end of the Observation Period in respect of any conversion, references within this Section 15.02(e) to ten Trading Days shall be deemed replaced, for purposes of calculating the Conversion Rate for the affected Conversion Payment Trading Days of the Observation Period in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the Expiration Date to, and including, the last Conversion Payment Trading Day of such Observation Period. For purposes of determining the Conversion Rate adjustment pursuant to this clause, in respect of any conversion during the ten Trading Days commencing on the Trading Day next succeeding the Expiration Date, references within this Section 15.02(e) to ten Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the Expiration Date to, but excluding, the relevant Conversion Date. In the event that the Company, or one of its Subsidiaries is, obligated to purchase shares of the Common Stock pursuant to any such tender offer or exchange offer, but the Company is, or such Subsidiary is, permanently prevented by applicable law from effecting any such purchases, or all such purchases are rescinded, then the Conversation Rate shall he readjusted to be the Conversion Rate that would then be in effect if such tender offer or exchange offer had not been made.
(f) To the extent permitted by applicable law and the rules of any stock exchange or market upon which the Common Stock is listed or admitted for trading, the Company may increase the Conversion Rate by any amount for a period of at least 20 Business Days if the Board of Directors determines that such increase would be in the best interest of the Company, which determination shall be conclusive.
(g) Notwithstanding any other provision of this Section 15.02,
Appears in 1 contract
Sources: Indenture (Radioshack Corp)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company as follows:
(1) In case the Company shall (a) If the Company issues Ordinary Shares to all pay a dividend, or substantially all holders of Ordinary Shares as make a dividend or distribution, the Conversion Rate will be adjusted based exclusively in shares of its capital stock, on the following formula: whereits Common Stock; (b) subdivide its outstanding Common Stock into a greater number of shares; (c) combine its outstanding Common Stock into a smaller number of shares; or (d) reclassify its Common Stock, CR0 = the Conversion Rate in effect at 5:00 p.m.immediately prior to the effective date for the adjustment pursuant to this Section 2.07(1), New York City timeas described below, on shall be adjusted so that the Trading Day immediately preceding the Ex-Dividend Date Holder of any Notes thereafter surrendered for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; OS0 = conversion shall be entitled to receive the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on shares of Common Stock of the Trading Day immediately preceding Company which such Holder would have owned or have been entitled to receive after the Ex-Dividend Date for happening of any of the events described above had such dividend or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distribution. Such adjustment shall become effective Notes been converted immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such dividend or distributioneffective date. If any dividend or distribution of the type described in this Section 12.03(aclause (a) above is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared.
(b. An adjustment made pursuant to this Section 2.07(1) If the Company effects a subdivision or combination of Ordinary Shares, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m.after the applicable Record Date in the case of a dividend and shall become effective immediately after the applicable effective date in the case of subdivision, New York City time, on combination or reclassification of the date on which such split or combination becomes effectiveCompany's Common Stock.
(c2) If In case the Company issues to all or substantially all the holders of Ordinary Shares any shall issue rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) all holders of its Common Stock entitling them to purchase, (for a period of not more than 45 calendar expiring within 60 days after the date of the announcement issuance of such rights or warrants) to subscribe for such issuance, Ordinary Shares or purchase Common Stock at an aggregate a price per share less than the average Market Price per share of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending Common Stock on the Trading Day immediately preceding the date Record Date fixed for determination of stockholders entitled to receive such issuance was first publicly announcedrights or warrants, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately after such Record Date shall be adjusted so that the Trading Day immediately preceding same shall equal the Ex-Dividend Date for such issuance; CR’ = Conversion Rate determined by multiplying the Conversion Rate in effect on immediately after such Record Date by a fraction of which the Ex-Dividend Date for such issuance; OS0 = numerator shall be the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m.on such Record Date plus the number of additional shares of Common Stock offered for subscription or purchase, New York City time, and of which the denominator shall be the number of shares of Common Stock outstanding on such Record Date plus the Trading Day immediately preceding number of shares which the Ex-Dividend Date for such issuance; Y = aggregate offering price of the total number of Ordinary Shares issuable pursuant shares so offered would purchase at such Market Price. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the Record Date for the determination of stockholders entitled to receive such rights or warrants; and Z = . To the number extent that shares of Ordinary Shares equal Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall be readjusted to the quotient Conversion Rate which would then be in effect had the adjustments made upon the issuance of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending been made on the Trading Day immediately preceding basis of delivery of only the date number of shares of Common Stock actually delivered. If such issuance was first publicly announcedrights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such Record Date for the determination of stockholders entitled to receive such rights or warrants had not been fixed. For purposes of this Section 12.03(c), in In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Pricessuch Market Price, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereofwarrants, with the value of such consideration, if other than cash, to be determined by the Board of Directors Directors.
(3) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock (excluding any distribution in connection with the liquidation, dissolution or winding up of the Company. If , whether voluntary or involuntary) any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution.
(d) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, assets or rights or warrants to subscribe for or purchase any of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
its securities (i) any dividends or distributions excluding those referred to in Section 12.03(a2.07(2) above;
hereof) (ii) shares delivered in connection with subdivisions any of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below foregoing hereinafter in this Section 12.03(d2.07(3) shall apply;
(vcalled the "Distributed Assets or Securities") in an aggregate amount that, combined together with the rights or warrants referred aggregate amount of any other such distributions to all holders of its Common Stock made within the 12 months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to this Section 12.03(d2.07(3) below (to has been made, exceeds 15% of the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then product of the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, Market Price on the Trading Day immediately preceding the Ex-Dividend Date for declaration of such distribution; CR’ = distribution and the number of shares of Common Stock outstanding on such date, then, the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Ex-Dividend Record Date for such distribution; SP0 = mentioned below by a fraction of which the average numerator shall be the Market Price per share of the Last Reported Sale Prices Common Stock on such Record Date, and the denominator shall be the Market Price per share of Ordinary Shares over the 10 consecutive Trading Day period ending Common Stock on the Trading Day immediately preceding the Ex-Dividend such Record Date for such distribution; and FMV = less the Fair Market Value on such Record Date (as determined by the Board of Directors Directors, whose determination shall be conclusive, and described in a certificate filed with the Trustee and the Paying Agent) of the Company) on the Ex-Dividend Date for such distribution Distributed Assets or Securities so distributed applicable to one share of the shares of Capital Common Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Record Date for the determination of stockholders entitled to receive such distribution; provided, however, that no adjustment will be made in respect of any such dividends and distributions that result in the payment of any contingent interest to the Holders; provided, further, that, if (a) the Fair Market Value of the portion of the Distributed Assets or Securities so distributed applicable distribution. If “FMV” (as defined above) to one share of Common Stock is equal to or greater than “SP0” the Market Price of the Common Stock on the Record Date or (as defined above)b) the Market Price of the Common Stock on the Record Date is greater than the Fair Market Value of such Distributed Assets or Securities by less than $1.00, other than in respect to a Public Spin-Offthen, in lieu of the adjustment described in this Section 12.03(d)foregoing adjustment, adequate provision shall be made so that each Holder of Notes shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversionthe shares of Common Stock, the kind and amount of assets (including cash)assets, shares of Capital Stockdebt securities, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if had such Holder had converted such Notes immediately prior to such Record Date. In the record date for determining the shareholders entitled to receive event that such distribution. With respect to an adjustment pursuant to this Section 12.03(d) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of shares of Capital Stock of any class or series, or similar Equity Interest, in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not so paid or made, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not adjusted to make such dividend or distribution, to be the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(f4) If Notwithstanding the foregoing provisions of Section 2.07(2) or (3), no adjustment shall be made thereunder for any distribution described therein if the Company or any of makes proper provision so that each Holder who converts its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries for all Notes (or any portion thereof) after the Record Date for such distribution shall be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion, the Ordinary Sharesamount and kind of assets or securities that such Holder would have been entitled to receive if such Holder had, immediately prior to such Record Date, converted such Notes for Common Stock; provided that, with respect to any Distributed Assets or Securities that are convertible, exchangeable or exercisable, the foregoing provision shall only apply to the extent that (and so long as) the Fair Market Value Distributed Assets or Securities receivable upon conversion of such Notes would be convertible, exchangeable or exercisable, as applicable, without any loss of rights or privileges for a period of at least 60 days following conversion of such Notes.
(as determined below5) Upon conversion of the cash and Notes, the Holders shall receive, in addition to the Common Stock issuable upon such conversion, the rights issued under any other consideration included future stockholder rights plan the Company implements (notwithstanding the occurrence of an event causing such rights to separate from the Common Stock at or prior to the time of conversion). No adjustment pursuant to this Section 2.07 shall be made in connection with such stockholder rights plans.
(6) For purposes of this Section 2.07, the number of shares of Common Stock at any time outstanding shall not include shares held in the payment per Ordinary Share, exceeds treasury of the Last reported Sale Price Company but shall include shares issuable in respect of Ordinary Shares scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not pay any dividend or make any distribution on shares of Common Stock held in the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors treasury of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”) (prior to giving effect to such tender or exchange offer); OS’ = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tende.
Appears in 1 contract
Sources: Third Supplemental Indenture (Interpublic Group of Companies Inc)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company from time to time, without duplication, as follows:
(a) If In case the Company issues Ordinary Shares to all shall (i) pay a dividend, or substantially all holders make a distribution on its Common Stock, exclusively in shares of Ordinary Shares as its Common Stock or other Capital Stock of the Company; (ii) subdivide or split its outstanding Common Stock into a dividend greater number of shares; (iii) combine or distributionreclassify its outstanding Common Stock into a smaller number of shares; or (iv) issue by reclassification of the shares of Common Stock any shares of the Company's Capital Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m.immediately prior to the record date or effective date, New York City timeas the case may be, on for the Trading Day immediately preceding adjustment pursuant to this Section 9.6(a) as described below, shall be adjusted so that the Ex-Dividend Date Holder of any Notes thereafter surrendered for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; OS0 = conversion shall be entitled to receive the number of Ordinary Shares outstanding at 5:00 p.m.shares of Common Stock and/or Capital Stock which such Holder would have owned or have been entitled to receive after the happening of any of the events described above had such Notes been converted immediately prior to such record date or effective date, New York City time, on as the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distributioncase may be. Such An adjustment made pursuant to this Section 9.6(a) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for such applicable record date in the case of a dividend or distributiondistribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or reclassification of the Common Stock. If any dividend or distribution of the type described in this Section 12.03(aclause (i) above is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If In case the Company effects at any time or from time to time after the issuance of the Notes shall issue rights or warrants to all or substantially all holders of the Common Stock entitling them to subscribe for or purchase Common Stock at a subdivision or combination price per share less than the Market Price per share of Ordinary Shares, the Conversion Rate will be adjusted based Common Stock on the following formula: whererecord date fixed for determination of shareholders entitled to receive such rights or warrants, CR0 = the Conversion Rate in effect immediately after such record date shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately after such record date by a fraction of which (i) the numerator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at 5:00 p.m., New York City time, the Market Price per share of Common Stock on the earlier of such record date or the Trading Day immediately preceding the effective ex date for such issuance of such subdivision rights or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combinationwarrants. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately prior to 9:00 a.m., New York City time, after the opening of business on the day following the record date on which such split or combination becomes effective.
(c) If for the Company issues determination of shareholders entitled to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to receive such rights or warrants; and Z = . To the number extent that shares of Ordinary Shares equal Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall be readjusted to the quotient Conversion Rate which would then be in effect had the adjustments made upon the issuance of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending been made on the Trading Day immediately preceding basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such record date for the determination of shareholders entitled to receive such issuance was first publicly announcedrights or warrants had not been fixed. For purposes of this Section 12.03(c), in In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Pricessuch Market Price, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereofwarrants, with the value of such consideration, if other than cash, to be determined by the Board of Directors Directors.
(c) In case the Company shall, by dividend or in a merger, amalgamation or consolidation or otherwise, distribute to all holders of Common Stock any evidences of indebtedness, shares of Capital Stock of any class or series, other securities, cash or assets (excluding (i) any dividend, distribution or issuance covered by those referred to in Section 9.6(a) or 9.6(b) hereof and (ii) any dividend or distribution paid exclusively in cash, shares of Capital Stock or similar Equity Interests in the case of a Spin-Off referred to in Section 9.6(e) hereof, and any dividend or distribution paid exclusively in cash referred to in Section 9.6(d) hereof (any of the Company. If any rights or warrants of the type described foregoing hereinafter in this Section 12.03(a9.6(c) are not so issuedcalled the "Distributed Assets or Notes") in an aggregate amount per share of Common Stock that, combined together with the Conversion Rate shall again be readjusted, effective as aggregate amount of any other such distributions to all holders of its Common Stock made within the 12 months preceding the date the Company publicly announces not to issue of payment of such rights or warrantsdistribution, to the Conversion Rate that would then be and in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration respect of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any which no adjustment made pursuant to this Section 12.03(c9.6(c) shall become effective immediately prior to 9:00 a.m.has been made, New York City time, on the Ex-Dividend Date for the applicable distribution.
(d) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, exceeds 10% of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
(i) any dividends or distributions referred to in Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, Distribution Adjustment Market Price on the Trading Day immediately preceding the Ex-Dividend Date for declaration of such distribution; CR’ = , then the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the Ex-Dividend Date record date fixed for determination of stockholders entitled to receive such distribution; SP0 = distribution below by a fraction of which (A) the average numerator shall be the Distribution Adjustment Market Price per share of the Last Reported Sale Prices Common Stock on the earlier of Ordinary Shares over the 10 consecutive Trading Day period ending on such record date or the Trading Day immediately preceding the Ex-Dividend Date ex date for such dividend or distribution; , and FMV = (B) the denominator shall be (1) the Distribution Adjustment Market Price per share of the Common Stock on the earlier of such record date or the Trading Day immediately preceding the ex date for such dividend or distribution plus (2) the Fair Market Value on the earlier of such record date or the Trading Day immediately preceding the ex date for such dividend or distribution (as determined in good faith by the Board of Directors Directors, whose determination shall be conclusive, and described in a certificate filed with the Trustee and the Paying Agent) of the Company) on the Ex-Dividend Date for such distribution Distributed Assets or Notes so distributed applicable to one share of the shares of Capital Common Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date record date for the determination of shareholders entitled to receive such distribution; provided, however, that, if (i) the Fair Market Value of the portion of the Distributed Assets or Notes so distributed applicable distribution. If “FMV” (as defined above) to one share of Common Stock is equal to or greater than “SP0” the Distribution Adjustment Market Price of the Common Stock on the record date for the determination of shareholders entitled to receive such distribution or (as defined above)ii) the Distribution Adjustment Market Price of the Common Stock on the record date for the determination of shareholders entitled to receive such distribution is greater than the Fair Market Value per share of such Distributed Assets or Notes by less than $1.00, other than in respect to a Public Spin-Offthen, in lieu of the adjustment described in this Section 12.03(d)foregoing adjustment, adequate provision shall be made so that each Holder of Notes shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversionthe shares of Common Stock, the kind and amount of assets (including cash)assets, shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s debt securities, as applicable, that such or rights or warrants comprising the Distributed Assets or Notes the Holder would have received if had such Holder had converted such Notes immediately prior to the record date for determining the determination of shareholders entitled to receive such distribution. With respect In the event that such distribution is not so paid or made, the Conversion Rate shall again be adjusted to an adjustment pursuant to this Section 12.03(dthe Conversion Rate which would then be in effect if such distribution had not been declared.
(d) where there has been a payment of a In case the Company shall make any distributions, by dividend or other distribution on the Ordinary Shares consists otherwise, during any Semi-Annual Interest Payment Period consisting exclusively of cash to all or substantially all holders of outstanding shares of Capital Stock of any class or seriesCommon Stock, or similar Equity Interestthen, and in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Marketeach such case, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by dividing the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, the close of business on the Ex-Dividend Date record date fixed for the determination of holders of Common Stock entitled to receive such distribution by a fraction of which (A) the numerator shall be the Market Price per share of the distribution will be increased based Common Stock on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on earlier of such record date or the Trading Day immediately preceding the Ex-Dividend Date ex date for such distribution; CR’ = dividend or distribution and (B) the denominator shall be (1) the Market Price per share of Common Stock on the earlier of such record date or the Trading Day immediately preceding the ex date for such dividend or distribution plus (2) the amount per share of such distributions (appropriately adjusted from time to time for any stock dividends on or subdivisions or combination of Common Stock).
(e) With respect to Section 9.6(c) above, in the event that the Company makes any distribution to all holders of Common Stock consisting of Equity Interests in a Subsidiary or other business unit of the Company, the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the Exrecord date fixed for the determination of holders of Common Stock entitled to receive such distribution by a fraction of which (i) the numerator shall be the Spin-Dividend Date for such distribution; FMV0 = the average Off Market Price per share of the Last Reported Sale Prices Common Stock on such record date and (ii) the denominator shall be (x) the Spin-Off Market Price per share of the Capital Common Stock on such record date plus (y) the Spin-Off Market Price per Equity Interest of the Subsidiary or similar Equity Interests distributed other business unit of the Company on such record date. The adjustment to holders the Conversion Rate set forth in this Section 9.6(e) will occur at the earlier of Ordinary Shares applicable to one share of Ordinary Shares during (1) the 10 consecutive 10th Trading Day period commencing onfrom, and including, the effective date of the Spin-Off; Off and MP0 = (2) the average date of the Last Reported Sale Prices Initial Public Offering of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of securities being distributed in the Spin-Off. Such adjustment , if that Initial Public Offering is effected simultaneously with the Spin-Off.
(f) Upon conversion of the Notes, the Holders shall become effective immediately receive, if they receive shares of Common Stock, in addition to the Common Stock issuable upon such conversion, the rights issued under any shareholder rights plan the Company implements (notwithstanding the occurrence of an event causing such rights to separate from the Common Stock at or prior to 9:00 a.m.the time of conversion) unless, New York City timeprior to conversion, on the Ex-Dividend Date for rights have expired, terminated or been redeemed or exchanged in accordance with the rights plan. If, and only if, the Holders of Notes receive rights under such distribution. If any such dividend or distribution shareholder rights plans as described in this Section 12.03(d) is declared but not paid or madethe preceding sentence upon conversion of their Notes, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an no other adjustment to the Conversion Rate is required pursuant to this Section 12.03(d9.6 shall be made in connection with such shareholder rights plans.
(g) during For purposes of this Section 9.6, the number of shares of Common Stock at any settlement period time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of Notes that have been tendered for conversion, delivery scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the related conversion consideration will be delayed to Company.
(h) Notwithstanding the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06foregoing, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment pursuant to the Conversion Rate under this Section 12.03(dSections 9.6(c), (d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the "Maximum Conversion Rate will Rate" shall initially be 28.6533 and shall be appropriately adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes from time to holders of Ordinary Shares. An adjustment to the Conversion Rate made time pursuant to this any adjustments in Section 12.03(e9.6(a) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined aboveand Section 9.6(b) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declaredhereof.
(f) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”) (prior to giving effect to such tender or exchange offer); OS’ = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tende
Appears in 1 contract
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company as follows:described below, except that the Company shall not make any adjustments to the Conversion Rate if Holders of the Notes participate (as a result of holding the Notes, and at the same time as holders of the Common Stock participate) in any of the transactions described in this Section 5.02 as if such Holders of the Notes held a number of shares of the Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holders, without having to convert their Notes.
(a) If the Company issues Ordinary Shares to all or substantially all holders shares of Ordinary Shares Common Stock as a dividend or distributiondistribution on shares of Common Stock, or if the Company effects a share split or share combination, the Conversion Rate will shall be adjusted based on the following formula: OS1 CR1 = CR0 x --- OS0 where, CR0 = the Conversion Rate conversion rate in effect at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding the Exex-Dividend Date for dividend date of such dividend or distribution; CR’ distribution or the Effective Date of such share split or combination, as applicable CR1 = the Conversion Rate conversion rate in effect on the Eximmediately after such ex-Dividend Date for such dividend date or distribution; Effective Date, as applicable OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m.immediately prior to such ex-dividend date or Effective Date, New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and OS’ as applicable OS1 = the number of Ordinary Shares that would be shares of Common Stock outstanding immediately afterprior to such ex-dividend date or Effective Date, and solely as a result ofapplicable, after giving pro forma effect to such dividend dividend, distribution, share split or distribution. share combination Such adjustment shall become effective immediately prior to after 9:00 a.m., New York City time, on the Ex-Dividend Business Day following the Record Date for such dividend or distribution, or the date fixed for determination for such share split or share combination. The Company shall not pay any dividend or make any distribution on shares of Common Stock held in treasury by the Company. If any dividend or distribution of the type described in this Section 12.03(a5.02(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company effects a subdivision or combination distributes to holders of Ordinary Shares, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares Common Stock any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date to subscribe for or purchase shares of the announcement for such issuance, Ordinary Shares Common Stock at an aggregate a price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during Common Stock for the 10 consecutive Trading Trading-Day period ending on the Trading Day immediately preceding the date of announcement of such issuance was first publicly announceddistribution, then the Conversion Rate will shall be adjusted based on the following formula: OS0 + X CR1 = CR0 x ------- OS0 + Y where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior the Trading Day immediately preceding the Exex-Dividend Date dividend date for such issuance; CR’ distribution CR1 = the Conversion Rate in effect on the Eximmediately after such ex-Dividend Date for such issuance; dividend date OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Exafter such ex-Dividend Date for such issuance; Y dividend date X = the total number of Ordinary Shares shares of Common Stock issuable pursuant to such rights or warrants; and Z warrants Y = the number of Ordinary Shares shares of Common Stock equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during Common Stock over the 10 consecutive Trading Trading-Day period ending on the Trading Day immediately preceding the date of announcement of the distribution of such rights or warrants Such adjustment shall be successively made whenever any such rights or warrants are issued and shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the date fixed for such determination. The Company shall not issue any such rights, options or warrants in respect of shares of Common Stock held in treasury by the Company. To the extent that shares of Common Stock are not delivered after the expiration of such rights or warrants, or such rights or warrants are not exercised prior to their expiration, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance was first publicly announcedof such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. For purposes If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such date fixed for the determination of this Section 12.03(c), in stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable such Last Reported Sale PricesPrice, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Company's Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distributionDirectors.
(dc) If the Company distributes shares of Capital Stockits capital stock, evidences of its indebtedness Indebtedness or other assets, including securities, assets or property of the Company to holders of all or substantially all the holders of the Ordinary SharesCommon Stock, excluding:
(i) any dividends or distributions and rights or warrants referred to in Section 12.03(a5.02(a) or (b) above;
(ii) shares delivered dividends or distributions paid exclusively in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;cash; and
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth as described below in this Section 12.03(d5.02(c) shall apply;
(v) the rights or warrants referred with respect to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. Spin-Offs, then the Conversion Rate will shall be adjusted based on the following formula: ▇▇▇ ▇▇▇ = CR0 x --------- SP0 - FMV where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding the Exex-Dividend Date dividend date for such distribution; CR’ distribution CR1 = the Conversion Rate in effect on the Eximmediately after such ex-Dividend Date for such distribution; dividend date SP0 = the average of the Last Reported Sale Prices of Ordinary Shares Common Stock over the 10 consecutive Trading Trading-Day period ending on the Trading Day immediately preceding the Exex-Dividend Date dividend date for such distribution; and distribution FMV = the Fair Market Value (as determined by the Company's Board of Directors of the CompanyDirectors) on the Ex-Dividend Date for such distribution of the shares of Capital Stockcapital stock, evidences of indebtednessIndebtedness, assets or assets, including securities, so distributed, expressed as an amount per Ordinary Share. property distributed with respect to each outstanding share of Common Stock on the record date for such distribution Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date Business Day following the date fixed for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu determination of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders stockholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(dclause (c) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of Common Stock in shares of Capital Stock capital stock of any class or series, or similar Equity Interestequity interest, in of or relating to a Subsidiary or other business unit (a “"Spin-Off”"), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding Effective Date of such Spin-Off shall be increased based on the Ex-Dividend Date for such distribution; CR’ following formula: FMV0 + MP0 CR1 = CR0 x ---------- MP0 where, CR0 = the Conversion Rate in effect immediately prior to 5:00 p.m., New York City time, on the ExEffective Date of the Spin-Dividend Off CR1 = the Conversion Rate in effect immediately after the Effective Date for such distribution; of the Spin-Off FMV0 = the average of the Last Reported Sale Prices of the Capital Stock capital stock or similar Equity Interests equity interest distributed to holders of Ordinary Shares Common Stock applicable to one share of Ordinary Shares during Common Stock over the first 10 consecutive Trading Trading-Day period commencing onfrom, and including, the effective date Effective Date of the Spin-Off; and Spin- Off MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during Common Stock over the first 10 consecutive Trading Trading-Day period commencing onfrom, and including, the effective date Effective Date of the Spin-Off Such adjustment shall occur on the tenth Trading Day from, and including, the Effective Date of the Spin-Off and shall be applied on a retroactive basis from, and including, the Effective Date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. .
(i) If any such regular, quarterly cash dividend or distribution described made to the holders of all or substantially all of the Common Stock is in this Section 12.03(d) is declared but not paid or madeexcess of $0.05 per share (the "Initial Dividend Threshold"), the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: ▇▇▇ ▇▇▇ = CR0 x ------- SP0 - C where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the ex-dividend date for such dividend or distribution CR1 = the Conversion Rate in effect immediately after the ex-dividend date for such dividend or distribution SP0 = the Last Reported Sale Price of Common Stock on the Trading Day immediately preceding the Exex-Dividend Date dividend date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and distribution C = the amount in cash per share of Ordinary Shares that distributed by the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An Common Stock in excess of the Initial Dividend Threshold The Initial Dividend Threshold is subject to adjustment in a manner inversely proportional to adjustments to the Conversion Rate; provided that no adjustment shall be made to the Initial Dividend Threshold for any adjustment made to the Conversion Rate made pursuant to under this Section 12.03(e5.02(d)(i).
(ii) shall become effective immediately prior to 9:00 a.m., New York City time, on If the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, Company pays any cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) that is declared but not paid a regular, quarterly cash dividend or madedistribution to holders of all or substantially all of the Common Stock, the Conversion Rate shall be readjustedadjusted based on the following formula: ▇▇▇ ▇▇▇ = CR0 x ------- SP0 - C where, effective as of the date the Company publicly announces not to make such dividend or distribution, to be CR0 = the Conversion Rate that would then be in effect if immediately prior to the ex-dividend date for such dividend or distribution had not been declared.CR1 = the Conversion Rate in effect immediately after the ex-dividend date for such dividend or distribution SP0 = the Last Reported Sale Price of Common Stock on the Trading Day immediately preceding the ex-dividend date for such dividend or distribution C = the amount in cash per share distributed by the Company to holders of Common Stock
(fe) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to makes a payment in respect of a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary SharesCommon Stock, to the extent that the Fair Market Value (as determined below) of the cash and value of any other consideration included in the payment per Ordinary Share, share of Common Stock exceeds the Last reported Reported Sale Price of Ordinary Shares the Common Stock on the Trading Day immediately after next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (such last date, the “"Expiration Date”Time"), as it may be amended, the Conversion Rate will shall be adjusted increased based on the following formula: AC + (SP1 x OS1) CR1 = CR0 x ---------------- OS0 x SP1 where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Expiration Date; CR’ Effective Date of the adjustment CR1 = the Conversion Rate in effect on immediately after the Trading Day immediately following Effective Date of the Expiration Date; adjustment AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and any other consideration (as determined by the Company's Board of Directors) paid or payable for the Ordinary Shares validly tendered shares accepted for purchase or exchanged and not withdrawn as of the Expiration Date; exchange in such tender or exchange offer OS0 = the number of Ordinary Shares shares of Common Stock outstanding immediately before prior to the last time tenders or exchanges may be made pursuant to date such tender or exchange offer expires OS1 = the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (the “Expiration Time”) (prior to after giving effect to the reduction of shares accepted for purchase or exchange in such tender or exchange offer); OS’ ) SP1 = the number average of Ordinary Shares the Last Reported Sale Prices of Common Stock over the 10 consecutive Trading-Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires Such adjustment shall occur on the tenth Trading Day from, and including, the Trading Day next succeeding the date such tender or exchange offer expires and shall be applied on a retroactive basis from, and including, the Trading Day next succeeding the date such tender or exchange offer expires. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made. Except as stated herein, the Company shall not adjust the Conversion Rate for the issuance of shares of Common Stock or any securities convertible into or exchangeable for shares of Common Stock or the right to purchase shares of Common Stock or such convertible or exchangeable securities.
(f) The Company may (but is not required to) increase the Conversion Rate to avoid or diminish income tax to holders of Common Stock or rights to purchase Common Stock in connection with a dividend or distribution of shares (or rights to acquire shares) or any similar event treated as such for income tax purposes.
(g) To the extent permitted by applicable law and the rules of any stock exchange or market upon which the Common Stock is listed or admitted for trading, the Company may increase the Conversion Rate by any amount for a period of at least 20 days if the Company's Board of Directors determines that such increase would be in the best interest of the Company, which determination shall be conclusive.
(h) Notwithstanding the foregoing provisions of this Section 5.02, the applicable Conversion Rate need not be adjusted:
(i) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the securities of the Company and the investment of additional optional amounts in shares of Common Stock under any plan;
(ii) upon the issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Company or any of its Subsidiaries;
(iii) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security not described in clause (ii) above and outstanding as of the Issue Date;
(iv) for a change in the par value of the Common Stock; or
(v) for accrued and unpaid interest (including Additional Interest, if any).
(i) All calculations under this Section 5.02 shall be made by the Company and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of a share, as the case may be. The Company shall not be required to make an adjustment in the Conversion Rate unless the adjustment would require a change of at least 1% in the Conversion Rate; provided, however, that the Company shall carry forward any adjustments that are less than 1% of the Conversion Rate that the Company elects not to make and take them into account upon the earlier of (i) any conversion of Notes or (ii) such time as all adjustments that have not been made prior thereto would have the effect of adjusting the conversion rate by at least 1%. Except as provided in Sections 5.03 and 5.04, the Company shall not adjust the Conversion Rate.
(j) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officers' Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until a Trust Officer of the Trustee shall have received such Officers' Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which such adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Rate to the Holder of each Note at such Holder's last address appearing on the Security Register. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
(k) Any case in which this Section 5.02 provides that an adjustment shall become effective immediately after (i) a Record Date for an event, (ii) the date fixed for the determination of a share split or combination pursuant to Section 5.02(a), or (iii) the Expiration Time for any tender or exchange offer pursuant to Section 5.02(e), (each a "Determination Date"), the Company may elect to defer until the occurrence of the applicable Adjustment Event (x) issuing to the Holder of any Note converted after giving effect solely to such tendeDetermination Date and before the occurren
Appears in 1 contract
Sources: Third Supplemental Indenture (United States Steel Corp)
Adjustments to Conversion Rate. The If the number of Ordinary Shares represented by each ADS is changed, after the date of this Note, for any reason other than one or more of the events described in this Section 5.3, the Company shall make an appropriate adjustment to the Conversion Rate such that the number of Ordinary Shares represented by the ADSs upon which conversion of the Note is based remains the same. In addition, the Conversion Rate shall be adjusted from time to time by the Company as follows:
(a) If In case the Company issues shall, at any time or from time to time while the Note is outstanding, pay a dividend in Ordinary Shares (directly or in the form of ADSs) or make a distribution in Ordinary Shares to all or substantially all holders of Ordinary Shares as a dividend or distributionShares, then the Conversion Rate will shall be adjusted based on the following formula: where, OS1 CR1 = CR0 × OS 0 where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such dividend or distribution; CR’ CR1 = the Conversion Rate in effect on the Exex-Dividend Date dividend date for such dividend or distribution; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such dividend or distribution; and OS’ OS1 = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distribution. Such Any adjustment made pursuant to this Section 5.3(a) shall become effective immediately prior to 9:00 a.m., New York City time, on the Exex-Dividend Date dividend date for such dividend or distribution. If any dividend or distribution that is the subject of the type described in this Section 12.03(a5.3(a) is declared but not so paid or made, the Conversion Rate shall again be adjustedimmediately readjusted, effective as of the date the Board of Directors of the Company (the “Board of Directors”) publicly announces its decision not to pay or make such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. For purposes of this Section 5.3(a), the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the trading day immediately preceding the ex-dividend date for such dividend or distribution shall not include Ordinary Shares held in treasury, if any. The Company will not pay any dividend or make any distribution on Ordinary Shares held in treasury, if any.
(b) If In case outstanding Ordinary Shares (directly or in the Company effects form of ADSs) shall be subdivided or split into a subdivision or combination greater number of Ordinary SharesShares or combined or reverse split into a smaller number of Ordinary Shares (in each case, other than in connection with a transaction to which Section 5.4 applies), the Conversion Rate will shall be adjusted based on the following formula: where, OS1 CR1 = CR0 × OS 0 where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the effective date of such subdivision or combination; CR’ CR1 = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the effective date of such subdivision or combination; and OS’ OS1 = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such Any adjustment made pursuant to this Section 5.3(b) shall become effective immediately prior to 9:00 a.m., New York City time, on the effective date on which of such split subdivision or combination becomes effectivecombination.
(c) If In case the Company issues shall issue rights (other than rights issued pursuant to a shareholders’ rights plan or a dividend or distribution on Ordinary Shares in Ordinary Shares as set forth in (a) above) or warrants to all or substantially all the holders of its Ordinary Shares any rights (whether direct or warrants (in the form of ADSs), other than pursuant an issuance in connection with a transaction to any rights plan described in which Section 12.03(d)(iii) below) 5.4 applies, entitling them to purchase, for a period of not more than 45 expiring within forty-five (45) calendar days after of the date of the announcement for such issuance, Ordinary Shares (directly or in the form of ADSs) at an aggregate a price per share Ordinary Share less than the average of the Last Reported Closing Sale Prices of the ADSs divided by the number of Ordinary Shares then represented by each ADS during the 10 ten (10) consecutive Trading Day trading day period ending on the Trading Day trading day immediately preceding the ex-dividend date such issuance was first publicly announcedfor the distribution, then the Conversion Rate will shall be adjusted based on the following formula: where, OS0 + X 0 CR1 = CR0 × OS + Y where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such issuance; CR’ CR1 = the Conversion Rate in effect on the Exex-Dividend Date dividend date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to such rights or warrants; and Z = the number of Ordinary Shares equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced. For purposes of this Section 12.03(c), in determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable for such Ordinary Shares, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution.
(d) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
(i) any dividends or distributions referred to in Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value (as determined by the Board of Directors of the Company) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of shares of Capital Stock of any class or series, or similar Equity Interest, in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(f) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”) (prior to giving effect to such tender or exchange offer); OS’ = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tende
Appears in 1 contract
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company from time to time, without duplication, as follows:
(a) If In case the Company issues Ordinary Shares to all Issuer shall: (i) pay a dividend, or substantially all holders of Ordinary Shares as make a dividend or distribution, the Conversion Rate will be adjusted based exclusively in shares of its capital stock, on the following formula: whereCommon Stock; (ii) subdivide its outstanding Common Stock into a greater number of shares; (iii) combine its outstanding Common Stock into a smaller number of shares; or (iv) reclassify its Common Stock, CR0 = the Conversion Rate in effect at 5:00 p.m.immediately prior to the record date or effective date, New York City timeas the case may be, on for the Trading Day immediately preceding adjustment pursuant to this Section 6.06(a) as described below, shall be adjusted so that the Ex-Dividend Date Holder of any 2023 Notes thereafter surrendered for such dividend or distribution; CR’ = conversion shall be entitled to receive the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; OS0 = the cash and number of Ordinary Shares outstanding at 5:00 p.m.shares of Common Stock of the Issuer which such Holder would have owned or have been entitled to receive after the happening of any of the events described above had such 2023 Notes been converted immediately prior to such record date or effective date, New York City time, on as the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distributioncase may be. Such An adjustment made pursuant to this Section 6.06(a) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for such applicable record date in the case of a dividend or distributiondistribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or reclassification of the Issuer's Common Stock. If any dividend or distribution of the type described in this Section 12.03(aclause (i) above is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared.
(b) If In case the Company effects Issuer shall issue rights or warrants to all holders of the Common Stock entitling them (for a subdivision period expiring within 60 days after the date of issuance of such rights or combination warrants) to subscribe for or purchase Common Stock at a price per share less than the Market Price per share of Ordinary Shares, the Conversion Rate will be adjusted based Common Stock on the following formula: whererecord date fixed for determination of shareholders entitled to receive such rights or warrants, CR0 = the Conversion Rate in effect immediately after such record date shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately after such record date by a fraction of which (i) the numerator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at 5:00 p.m., New York City time, the Market Price per share of Common Stock on the earlier of such record date or the Trading Day immediately preceding the effective ex date for such issuance of such subdivision rights or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combinationwarrants. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately prior to 9:00 a.m., New York City time, after the opening of business on the day following the record date on which such split or combination becomes effective.
(c) If for the Company issues determination of shareholders entitled to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to receive such rights or warrants; and Z = . To the number extent that shares of Ordinary Shares equal Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall be readjusted to the quotient Conversion Rate which would then be in effect had the adjustments made upon the issuance of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending been made on the Trading Day immediately preceding basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such record date for the determination of shareholders entitled to receive such issuance was first publicly announcedrights or warrants had not been fixed. For purposes of this Section 12.03(c), in In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Pricessuch Market Price, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company Issuer for such rights or warrants and any amount payable on exercise or conversion thereofwarrants, with the value of such consideration, if other than cash, to be determined by the Board of Directors Directors.
(c) In case the Issuer shall, by dividend or otherwise, distribute to all holders of the Company. If Common Stock any assets, debt securities or rights or warrants to purchase any of its securities (excluding (i) any dividend, distribution or issuance covered by those referred to in Section 6.06(a) or Section 6.06(b) hereof and (ii) any dividend or distribution paid exclusively in cash) (any of the type described foregoing hereinafter in this Section 12.03(a6.06(c) are called the "Distributed Assets or Securities") in an aggregate amount per share of Common Stock that, combined together with the aggregate amount of any other such distributions to all holders of its Common Stock made within the 12 months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to this Section 6.06(c) has been made, exceeds 15% of the Market Price on the Trading Day immediately preceding the declaration of such distribution, then the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the record date mentioned below by a fraction of which (A) the numerator shall be the Market Price per share of the Common Stock on the earlier of such record date or the Trading Day immediately preceding the ex date for such dividend or distribution, and (B) the denominator shall be (1) the Market Price per share of the Common Stock on the earlier of such record date or the Trading Day immediately preceding the ex date for such dividend or distribution less (2) the Fair Market Value on the earlier of such record date or the Trading Day immediately preceding the ex date for such dividend or distribution (as determined by the Board of Directors, whose determination shall be conclusive, and described in a certificate filed with the Trustee and the Paying Agent) of the Distributed Assets or Securities so distributed applicable to one share of Common Stock. Such adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution; provided, however, that, if (i) the Fair Market Value of the portion of the Distributed Assets or Securities so distributed applicable to one share of Common Stock is equal to or greater than the Market Price of the Common Stock on the record date for the determination of shareholders entitled to receive such distribution or (ii) the Market Price of the Common Stock on the record date for the determination of shareholders entitled to receive such distribution is greater than the Fair Market Value per share of such Distributed Assets or Securities by less than $1.00, then, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion, in addition to the cash and shares of Common Stock, the kind and amount of assets, debt securities, or rights or warrants comprising the Distributed Assets or Securities the Holder would have received had such Holder converted such 2023 Notes immediately prior to the record date for the determination of shareholders entitled to receive such distribution. In the event that such distribution is not so issuedpaid or made, the applicable Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, adjusted to the Conversion Rate that which would then be in effect if such issuance distribution had not been declared. If any right .
(d) In case the Issuer shall declare a cash dividend or warrant described in this Section 12.03(c) is not exercised cash distribution to all or converted prior to the expiration substantially all of the exercisability or convertibility thereofholders of Common Stock, the Conversion Rate shall be readjusted to increased so that the applicable Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on equal the Ex-Dividend Date for the applicable distribution.
(d) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
(i) any dividends or distributions referred to in Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = price determined by multiplying the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding the Ex-Dividend Date record date for such distribution; CR’ = dividend or distribution by a fraction,
(i) the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = numerator of which shall be the average of the Last Reported Sale Prices Price of Ordinary Shares over Common Stock for the 10 five consecutive Trading Day period Days ending on the Trading Day immediately preceding the Exrecord date for such dividend or distribution (the "Pre-Dividend Date for such distribution; and FMV = Sale Price"), and
(ii) the Fair Market Value (as determined by denominator of which shall be the Board of Directors of the Company) on the ExPre-Dividend Date for Sale Price, minus the full amount of such cash dividend or cash distribution applicable to one share of Common Stock (the shares of Capital Stock"Dividend Adjustment Amount"), evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such with such adjustment shall to become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date record date for such dividend or distribution; provided that if the applicable distribution. If “FMV” denominator of the foregoing fraction is less than $1.00 (as defined above) is equal to or greater than “SP0” (as defined aboveincluding a negative amount), other than in respect to a Public Spin-Off, then in lieu of the adjustment described in this Section 12.03(d)foregoing adjustment, adequate provision shall be made so that each Holder of Notes shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, the cash payable on and Common Stock issuable upon such conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that cash such Holder would have received if had such Holder had converted such Notes its 2023 Note solely into Common Stock at the then applicable Conversion Rate immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) where there has been a payment of a cash dividend or other distribution on the Ordinary Shares consists of shares of Capital Stock of any class or series, or similar Equity Interest, in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such cash distribution. If any such cash dividend or cash distribution described in this Section 12.03(d) is declared but not so paid or made, the applicable Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will again be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(fe) If the Company a Holder elects to convert 2023 Notes in connection with a corporate transaction that occurs on or any of its Subsidiaries purchases Ordinary Shares pursuant prior to July 15, 2008, that constitutes a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion Fundamental Change (other than as described in clause (iv) of the Ordinary Shares, to the extent that definition of Fundamental Change) and 10% or more of the Fair Market Value (as determined below) of the cash and any other consideration included in for the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value Common Stock (as determined by the Board of Directors Directors, whose determination shall be conclusive evidence of such Fair Market Value) in the Companycorporate transaction consists of (i) cash, (ii) other property or (iii) securities that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Expiration DateNasdaq National Market, of then the aggregate value of all Conversion Rate for the 2023 Notes surrendered for conversion by such Holder shall be adjusted so that such Holder will be entitled to receive cash and other consideration paid or payable for shares of Common Stock equal to the Ordinary Shares validly tendered or exchanged sum of (A) the Conversion Value and not withdrawn as of the Expiration Date; OS0 = (B) the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer additional shares of Common Stock (the “Expiration Time”"Additional Shares") (prior to giving effect to such tender or exchange offer); OS’ = determined in the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tendemanner
Appears in 1 contract
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company as follows:
(a) If the Company issues Ordinary Shares to all or substantially all holders shares of Ordinary Shares Common Stock as a dividend or distributiondistribution on all of the shares of the Common Stock, or effects a share split or share combination, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be; CR’ = the new Conversion Rate in effect on immediately after the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be; and OS’ = the number of Ordinary Shares that would be shares of Common Stock outstanding immediately after, and solely as a result of, after such dividend or distribution, or the effective date of such share split or share combination, as the case may be. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after (i) the Ex-Dividend Date for such dividend or distributiondistribution or (ii) the date on which such split or combination becomes effective, as applicable. If any dividend or distribution of the type described in this Section 12.03(a11.02(a) is declared but not so paid or made, the new Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company effects distributes to all holders of its Common Stock any rights or warrants (other than pursuant to any rights plan described in Section 11.02(c)(ii) below) entitling them to purchase, for a subdivision or combination period of Ordinary Sharesnot more than 45 days after the Ex-Dividend Date for the distribution, shares of Common Stock at a price per share less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding the effective date of Ex-Dividend Date for such subdivision or combinationdistribution; CR’ = the new Conversion Rate in effect on immediately after the effective date of Ex-Dividend Date for such subdivision or combinationdistribution; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding Ex-Dividend Date for such distribution; X = the effective date total number of shares of Common Stock issuable pursuant to such subdivision rights or combinationwarrants; and OS’ Y = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, shares of Common Stock equal to the aggregate price payable to exercise such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than divided by the average of the Last Reported Sale Prices of the Ordinary Shares during Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to such rights or warrants; and Z = the number of Ordinary Shares equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announceddistribution. For purposes of this Section 12.03(c11.02(b), in determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable for such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declaredDirectors. If any right or warrant described in this Section 12.03(c11.02(b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c11.02(b) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for the applicable distribution.
(dc) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, assets or property of the Company to all or substantially all the holders of the Ordinary SharesCommon Stock, excluding:
(i) any dividends or distributions referred to in Section 12.03(aclause (a) or (b) above;
(ii) shares delivered in connection rights issued to all holders of Common Stock pursuant to a rights plan, where such rights are not at the time of such distribution exercisable, continue to trade with subdivisions of Ordinary Shares referred to the Common Stock and Holders will receive such rights together with any Common Stock upon conversion as described in Section 12.03(b) above11.06;
(iii) rights and warrants referred to dividends or distributions paid exclusively in Section 12.03(c) above;cash; and
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(dclause (c) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such distribution; CR’ = the new Conversion Rate in effect on immediately after the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares the Common Stock over the 10 consecutive Trading Day period ending on on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the average of the Fair Market Value Values (as determined by the Board of Directors of the CompanyDirectors) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, assets or assets, including securities, so distributed, expressed as an amount per Ordinary Shareproperty distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d11.02(c), each Holder of Notes shall be entitled to receive receive, for each $1,000 Original Principal Amount of Notes, without conversion and at the same time and upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversionthe same terms as holders of Common Stock, the amount and kind and amount of our capital stock, evidences of the Company’s indebtedness or other assets or property of the Company (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, options or warrants or options to purchase acquire the Company’s capital stock or other securities, as applicable, ) that such Holder would have received if such Holder had converted such Notes immediately prior owned a number of shares of Common Stock equal to the record date Conversion Rate in effect on the Trading Day immediately preceding the Ex-Dividend Date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(dclause (c) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists Common Stock of shares of Capital Stock of any class or series, or similar Equity Interestequity interest, in of or relating to a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m.before 5:00 p.m., New York City time, on the Ex-Dividend Date tenth Trading Day immediately following, and including, the effective date of the distribution Spin-Off will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the tenth Trading Day immediately preceding following, and including, the Exeffective date of the Spin-Dividend Date for such distributionOff; CR’ = the new Conversion Rate in effect on immediately after the Extenth Trading Day immediately following, and including, the effective date of the Spin-Dividend Date for such distributionOff; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests equity interest distributed to holders of Ordinary Shares Common Stock applicable to one share of Ordinary Shares during Common Stock over the first 10 consecutive Trading Day period commencing onimmediately following, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during Common Stock over the first 10 consecutive Trading Day period commencing onimmediately following, and including, the effective date of the Spin-Off. Such adjustment shall become occur immediately after the tenth Trading Day immediately following, and including, the effective immediately prior date of the Spin-Off provided that, for purposes of determining the Conversion Rate, in respect of any conversion during the ten Trading Days following the effective date of any Spin-Off, references within the portion of this clause (c) related to 9:00 a.m., New York City time, on “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Exeffective date of such Spin-Dividend Date for such distributionOff and the relevant Conversion Date. If any such dividend or distribution described in this Section 12.03(dclause (c) is declared but not paid or made, the new Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d.
(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights cash dividend or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), is made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company)Common Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such dividend or distribution; CR’ = the new Conversion Rate in effect on immediately after the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices Price of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that Common Stock of the Company pays as a dividend or otherwise distributes to holders of Ordinary SharesCommon Stock. An adjustment to the Conversion Rate made pursuant to this Section 12.03(eclause (d) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e11.02(d), each Holder of Notes shall be entitled to receive receive, for each $1,000 Original Principal Amount of Notes, without conversion and at the same time and upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversionthe same terms as holders of Common Stock, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior owned a number of shares of Common Stock equal to the record date Conversion Rate on the Trading Day immediately preceding the Ex-Dividend Date for determining the shareholders entitled to receive such cash dividend or distribution. If any such dividend or distribution described in this Section 12.03(dclause (d) is declared but not so paid or made, the new Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not readjusted to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(fe) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to makes a payment in respect of a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary SharesCommon Stock, to the extent that the Fair Market Value (as determined below) of the cash and value of any other consideration included in the payment per Ordinary Share, share of Common Stock exceeds the Last reported Reported Sale Price of Ordinary Shares the Common Stock on the Trading Day immediately after next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amendedoffer, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, the close of business on the Expiration Datelast Trading Day of the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires; CR’ = the new Conversion Rate in effect immediately following the last Trading Day of the 10 consecutive Trading Day period commencing on the Trading Day immediately following next succeeding the Expiration Datedate such tender or exchange offer expires; AC = the Fair Market Value aggregate value of all cash and any other consideration (as determined by the Board of Directors of the CompanyDirectors) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered shares purchased in such tender or exchanged and not withdrawn as of the Expiration Dateexchange offer; OS0 = the number of Ordinary Shares shares of Common Stock outstanding immediately before prior to the last time tenders expiration of such tender or exchanges may be made pursuant to exchange offer; OS’ = the number of shares of Common Stock outstanding immediately after the expiration of such tender or exchange offer (the “Expiration Time”) (prior to after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); OSand SP’ = the average of the Last Reported Sale Prices of Common Stock over the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires. The adjustment to the Conversion Rate under this clause (e) shall become effective immediately following the tenth Trading Day next succeeding the date such tender or exchange offer expires; provided that, for purposes of determining the Conversion Rate, in respect of any conversion during the ten Trading Days following the date that any tender or exchange offer expires, references within this clause (e) to 10 Trading Days shall be deemed replaced with such lesser number of Ordinary Shares Trading Days as have elapsed between the date such tender or exchange offer expires and the relevant Conversion Date. If the Company or one of its Subsidiaries is obligated to purchase Common Stock pursuant to any such tender or exchange offer but are permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Conversion Rate shall be readjusted to be the Conversion Rate that would be in effect if such tender or exchange offer had not been made.
(f) Notwithstanding the foregoing provisions of this Section 11.02, no adjustment will be made thereunder, nor shall an adjustment be made to the ability of a Holder to convert, for any distribution described therein if the Holder will otherwise participate in the distribution without conversion of such Holder’s Notes as if such Holder held a number of shares of Common Stock equal to the Conversion Rate, multiplied by the Original Principal Amount (expressed in thousands) of the Notes held by such Holder, without having to convert its Notes. Further, if the application of the foregoing formulas in this Section 11.02 would result in a decrease in the Conversion Rate, no adjustment to the Conversion Rate will be made (except on account of share combinations).
(g) No adjustment to the Conversion Rate will be made unless as specifically set forth in this Section 11.02 and Section 11.03.
(h) Without limiting the foregoing, no adjustment to the Conversion Rate need be made:
(i) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in shares of Common Stock under any plan;
(ii) upon the issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present or future employee, director or consultant benefit plan or program or employee stock purchase plan of or assumed by the Company or any of its Subsidiaries;
(iii) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security not described in clause (ii) above and outstanding immediately as of the Issue Date;
(iv) for a change in the par value of the Common Stock;
(v) for accrued and unpaid Interest; or
(vi) for accretion of the Accreted Principal Amount.
(i) No adjustment to the Conversion Rate will be required unless the adjustment would require an increase or decrease of at least 1% of the Conversion Rate. If the adjustment is not made because the adjustment does not change the Conversion Rate by at least 1%, then the adjustment that is not made will be carried forward and taken into account in any future adjustment. All required calculations will be made to the nearest cent or 1/1000th of a share, as the case may be. Notwithstanding the foregoing, the Company shall make such carried forward adjustments, regardless of whether the aggregate adjustment is less than 1%, (i) on the Conversion Date for any Notes and (ii) if the Notes are called for redemption, all adjustments not previously made will be made for all the Notes to be converted after the Expiration Time (Company’s notice of redemption to the applicable Redemption Date. If a Conversion Rate adjustment becomes effective on any Ex-Dividend Date in accordance with Section 11.02, and a Holder that has converted its Notes on or after giving effect solely such Ex-Dividend Date and on or prior to the related Record Date would be treated as the Record Holder of Common Stock as of the related Conversion Date as provided in Section 11.01(c) based on an adjusted Conversion Rate for such Ex-Dividend Date, then, notwithstanding the Conversion Rate adjustment provisions in Section 11.02, the Conversion Rate adjustment relating to such tendeEx-Dividend Date shall not be made for such converting Holder. Instead, such Holder shall be treated as if such Holder were the record owner of shares of Common Stock on an unadjusted basis on such Conversion Date and participate in the rel
Appears in 1 contract
Sources: Third Supplemental Indenture (Goodrich Petroleum Corp)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company from time to time, without duplication, as follows:
(a) If In case the Company issues Ordinary Shares to all Issuer shall: (i) pay a dividend, or substantially all holders of Ordinary Shares as make a dividend or distribution, the Conversion Rate will be adjusted based exclusively in shares of its capital stock, on the following formula: whereCommon Stock; (ii) subdivide its outstanding Common Stock into a greater number of shares; (iii) combine its outstanding Common Stock into a smaller number of shares; or (iv) reclassify its Common Stock, CR0 = the Conversion Rate in effect at 5:00 p.m.immediately prior to the record date or effective date, New York City timeas the case may be, on for the Trading Day immediately preceding adjustment pursuant to this Section 6.06(a) as described below, shall be adjusted so that the Ex-Dividend Date Holder of any 2023 Notes thereafter surrendered for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; OS0 = conversion shall be entitled to receive the number of Ordinary Shares outstanding at 5:00 p.m.shares of Common Stock of the Issuer which such Holder would have owned or have been entitled to receive after the happening of any of the events described above had such 2023 Notes been converted immediately prior to such record date or effective date, New York City time, on as the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distributioncase may be. Such An adjustment made pursuant to this Section 6.06(a) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for such applicable record date in the case of a dividend or distributiondistribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or reclassification of the Issuer's Common Stock. If any dividend or distribution of the type described in this Section 12.03(aclause (i) above is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared.
(b) If In case the Company effects Issuer shall issue rights or warrants to all holders of the Common Stock entitling them (for a subdivision period expiring within 60 days after the date of issuance of such rights or combination warrants) to subscribe for or purchase Common Stock at a price per share less than the Market Price per share of Ordinary Shares, the Conversion Rate will be adjusted based Common Stock on the following formula: whererecord date fixed for determination of shareholders entitled to receive such rights or warrants, CR0 = the Conversion Rate in effect immediately after such record date shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately after such record date by a fraction of which (i) the numerator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at 5:00 p.m., New York City time, the Market Price per share of Common Stock on the earlier of such record date or the Trading Day immediately preceding the effective ex date for such issuance of such subdivision rights or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combinationwarrants. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately prior to 9:00 a.m., New York City time, after the opening of business on the day following the record date on which such split or combination becomes effective.
(c) If for the Company issues determination of shareholders entitled to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to receive such rights or warrants; and Z = . To the number extent that shares of Ordinary Shares equal Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall be readjusted to the quotient Conversion Rate which would then be in effect had the adjustments made upon the issuance of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending been made on the Trading Day immediately preceding basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such record date for the determination of shareholders entitled to receive such issuance was first publicly announcedrights or warrants had not been fixed. For purposes of this Section 12.03(c), in In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Pricessuch Market Price, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company Issuer for such rights or warrants and any amount payable on exercise or conversion thereofwarrants, with the value of such consideration, if other than cash, to be determined by the Board of Directors Directors.
(c) In case the Issuer shall, by dividend or otherwise, distribute to all holders of the Company. If Common Stock any assets, debt securities or rights or warrants to purchase any of its securities (excluding (i) any dividend, distribution or issuance covered by those referred to in Section 6.06(a) or Section 6.06(b) hereof and (ii) any dividend or distribution paid exclusively in cash) (any of the type described foregoing hereinafter in this Section 12.03(a6.06(c) are called the "Distributed Assets or Securities") in an aggregate amount per share of Common Stock that, combined together with the aggregate amount of any other such distributions to all holders of its Common Stock made within the 12 months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to this Section 6.06(c) has been made, exceeds 15% of the Market Price on the Trading Day immediately preceding the declaration of such distribution, then the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the record date mentioned below by a fraction of which (A) the numerator shall be the Market Price per share of the Common Stock on the earlier of such record date or the Trading Day immediately preceding the ex date for such dividend or distribution, and (B) the denominator shall be (1) the Market Price per share of the Common Stock on the earlier of such record date or the Trading Day immediately preceding the ex date for such dividend or distribution less (2) the Fair Market Value on the earlier of such record date or the Trading Day immediately preceding the ex date for such dividend or distribution (as determined by the Board of Directors, whose determination shall be conclusive, and described in a certificate filed with the Trustee and the Paying Agent) of the Distributed Assets or Securities so distributed applicable to one share of Common Stock. Such adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution; provided, however, that, if (i) the Fair Market Value of the portion of the Distributed Assets or Securities so distributed applicable to one share of Common Stock is equal to or greater than the Market Price of the Common Stock on the record date for the determination of shareholders entitled to receive such distribution or (ii) the Market Price of the Common Stock on the record date for the determination of shareholders entitled to receive such distribution is greater than the Fair Market Value per share of such Distributed Assets or Securities by less than $1.00, then, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion, in addition to the cash and shares of Common Stock, the kind and amount of assets, debt securities, or rights or warrants comprising the Distributed Assets or Securities the Holder would have received had such Holder converted such 2023 Notes immediately prior to the record date for the determination of shareholders entitled to receive such distribution. In the event that such distribution is not so issuedpaid or made, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, adjusted to the Conversion Rate that which would then be in effect if such issuance distribution had not been declared. If any right .
(d) In case the Issuer shall declare a cash dividend or warrant described in this Section 12.03(c) is not exercised cash distribution to all or converted prior to the expiration substantially all of the exercisability or convertibility thereofholders of Common Stock, the Conversion Rate shall be readjusted to increased so that the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on equal the Ex-Dividend Date for the applicable distribution.
(d) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
(i) any dividends or distributions referred to in Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = price determined by multiplying the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding the Ex-Dividend Date record date for such distribution; CR’ = dividend or distribution by a fraction,
(i) the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = numerator of which shall be the average of the Last Reported Sale Prices of Ordinary Shares over Common Stock Price for the 10 five consecutive Trading Day period Days ending on the Trading Day immediately preceding the Exrecord date for such dividend or distribution (the "Pre-Dividend Date for such distribution; and FMV = Sale Price"),
(ii) the Fair Market Value (as determined by denominator of which shall be the Board of Directors of the Company) on the ExPre-Dividend Date for Sale Price, minus the full amount of such cash dividend or cash distribution applicable to one share of Common Stock (the shares of Capital Stock"Dividend Adjustment Amount"), evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such and such adjustment shall to become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date record date for such dividend or distribution; provided that if the applicable distribution. If “FMV” denominator of the foregoing fraction is less than $1.00 (as defined above) is equal to or greater than “SP0” (as defined aboveincluding a negative amount), other than in respect to a Public Spin-Off, then in lieu of the adjustment described in this Section 12.03(d)foregoing adjustment, adequate provision shall be made so that each Holder of Notes shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, the cash payable on and Common Stock issuable upon such conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that cash such Holder would have received if had such Holder had converted such Notes its 2023 Note solely into Common Stock at the then applicable Conversion Rate immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) where there has been a payment of a cash dividend or other distribution on the Ordinary Shares consists of shares of Capital Stock of any class or series, or similar Equity Interest, in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such cash distribution. If any such cash dividend or cash distribution described in this Section 12.03(d) is declared but not so paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will again be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(fe) If a Holder elects to convert 2023 Notes in connection with a corporate transaction whereby the Company Issuer consummates a consolidation, merger or any binding share exchange of its Subsidiaries purchases Ordinary Shares pursuant which Common Stock would be converted into cash or property (other than securities) that occurs on or prior to July 15, 2008, which constitutes a tender offer or exchange offer made by Fundamental Change (other than relating to the Company or any of its Subsidiaries for all or any portion composition of the Ordinary Shares, to the extent that the Fair Market Value Issuer's Board of Directors as described in clause (as determined belowiv) of the cash definition of Fundamental Change in Section 1.02(b)) and any other 10% or more of the fair market value of the consideration included in for the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value Common Stock (as determined by the Issuer's Board of Directors Directors, whose determination shall be conclusive evidence of such fair market value) in the corporate transaction consists of (i) cash, (ii) other property or (iii) securities that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National Market, then the Conversion Rate of the Company) on the Expiration Date, of the aggregate value of all 2023 Notes being converted by such Holder at that time shall be adjusted so that such Holder will be entitled to receive cash and other consideration paid or payable for shares of Common Stock equal to the Ordinary Shares validly tendered or exchanged sum of (A) the Conversion Value and not withdrawn as of the Expiration Date; OS0 = (B) the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”) (prior to giving effect to such tender or exchange offer); OS’ = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tendeof
Appears in 1 contract
Adjustments to Conversion Rate. The Conversion Rate ------------------------------ shall be adjusted from time to time by the Company as follows:
(a) If In case the Company issues Ordinary Shares to all shall (i) pay a dividend, or substantially all holders of Ordinary Shares as make a dividend or distribution, the Conversion Rate will be adjusted based in shares of Common Stock or other Capital Stock, on the following formula: whereCommon Stock; (ii) subdivide its outstanding Common Stock into a greater number of shares; or (iii) combine its outstanding Common Stock into a smaller number of shares, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior thereto shall be adjusted so that the Trading Day immediately preceding the Ex-Dividend Date holder of any Note thereafter surrendered for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; OS0 = conversion shall be entitled to receive the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on shares of Common Stock which such holder would have owned or have been entitled to receive after the Trading Day happening of any of the events described above had such Note been converted immediately preceding prior to the Ex-Dividend Date for happening of such dividend or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distributionevent. Such An adjustment made pursuant to this Section 3.7 shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Common Stock Record Date for such in the case of a dividend or distributiondistribution and shall become effective immediately after the effective date in the case of subdivision, combination or reclassification. If any dividend or distribution of the type described in this Section 12.03(aclause (i) above is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that which would then be in effect if such dividend or dividend, distribution had not been declared.
(b) If In case the Company effects a subdivision or combination of Ordinary Shares, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares any issue rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) all holders of its Common Stock entitling them to purchase, (for a period of not more than 45 calendar expiring within 60 days after the date fixed for determination of the announcement stockholders entitled to receive such rights or warrants) to subscribe for such issuance, Ordinary Shares or purchase Common Stock at an aggregate a price per share less than the average Sale Price per share of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending Common Stock on the Trading Day immediately day preceding the date of announcement of the Common Stock Record Date for the determination of stockholders entitled to receive such issuance was first publicly announcedrights or warrants, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior thereto shall be adjusted so that the Trading Day immediately preceding same shall equal the Ex-Dividend Date for such issuance; CR’ = Conversion Rate determined by multiplying the Conversion Rate in effect on immediately prior to the Ex-Dividend Date for date of the issuance of such issuance; OS0 = rights or warrants by a fraction of which the numerator shall be the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding date of issuance of such rights or warrants plus the Ex-Dividend Date number of additional shares of Common Stock offered for subscription or purchase, and of which the denominator shall be the number of shares of Common Stock outstanding on the date of issuance of such issuance; Y = rights or warrants plus the number of shares which the aggregate offering price of the total number of Ordinary Shares issuable pursuant shares so offered would purchase at such Sale Price. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of business on the day following the Common Stock Record Date for the determination of the stockholders entitled to receive such rights or warrants; and Z = . To the number extent that shares of Ordinary Shares equal Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall be readjusted to the quotient Conversion Rate which would then be in effect had the adjustments made upon the issuance of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending been made on the Trading Day immediately preceding basis of delivery of only the date number of shares of Common Stock actually delivered. If such issuance was first publicly announcedrights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such Common Stock Record Date for the determination of stockholders entitled to receive such rights or warrants had not been fixed. For purposes of this Section 12.03(c), in In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported such Sale PricesPrice, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereofwarrants, with the value of such consideration, if other than cash, to be determined by the Board of Directors Directors.
(c) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock (excluding any distribution in connection with the liquidation, dissolution or winding up of the Company. If , whether voluntary or involuntary) any evidences of its indebtedness or assets (other than Cash) or rights or warrants to subscribe for or purchase any of its securities (excluding those referred to in Section 3.7(b)) (any of the type described foregoing hereinafter in this Section 12.03(a3.7 called the "Distributed Securities"), then, the Conversion Rate ----------- ---------- shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Market Price per share of the Common Stock on the Common Stock Record Date mentioned below, and the denominator shall be the Sale Price per share of the Common Stock on such Common Stock Record Date less the Fair Market Value on such Common Stock Record Date (as determined by the Board of Directors, whose determination shall be conclusive, and described in a certificate filed with the Trustee) are of the Distributed Securities so distributed applicable to one share of Common Stock. Such adjustment shall become effective immediately after the Common Stock Record Date for the determination of stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event (a) the then Fair Market Value (as so determined) of the portion of the Distributed Securities so distributed applicable to one share of Common Stock is equal to or greater than the Market Price of the Common Stock on the Common Stock Record Date or (b) such Market Price exceeds the Fair Market Value of such Distributed Securities by less than $1.00, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion the amount of Distributed Securities such Holder would have received had such Holder converted each Note immediately prior to such Common Stock Record Date. In the event that such distribution is not so issuedpaid or made, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, adjusted to the Conversion Rate that which would then be in effect if such issuance distribution had not been declared. If the Board of Directors determines the fair market value of any right or warrant described in distribution for purposes of this Section 12.03(c3.7(c) is not exercised by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market on the same day used in computing the Sale Price of the Common Stock. Notwithstanding the foregoing provisions of this Section 3.7, no adjustment shall be made thereunder for any distribution of Distributed Securities if the Company makes proper provision so that each Holder of a Note who converts such Note (or any portion thereof) after the Common Stock Record Date for such distribution shall be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion, the amount and kind of Distributed Securities that such Holder would have been entitled to receive if such Holder had, immediately prior to such Common Stock Record Date, converted such Note into Common Stock; provided that, with respect to any Distributed Securities that are convertible, exchangeable or exercisable, the foregoing provision shall only apply to the extent (and so long as) the Distributed Securities receivable upon conversion of such Note would be convertible, exchangeable or exercisable, as applicable, without any loss of rights or privileges for a period of at least 60 days following conversion of such Note. Upon conversion of the Notes the Holders shall receive, in addition to the Common Stock issuable upon such conversion, any rights issued under any existing or future stockholder rights plan the Company implements (notwithstanding the occurrence of an event causing such rights to separate from the Common Stock at or prior to the expiration time of conversion).
(d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock Cash (excluding any Cash that is distributed upon a merger or consolidation to which Section 3.8(f) applies) in an aggregate amount that, combined together with the aggregate amount of any other such distributions to all holders of its Common Stock made exclusively in Cash within the 12 months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to this Section 3.7 has been made, exceeds on a per share basis 15% of the exercisability Sale Price on the day preceding the date of declaration of such dividend or convertibility thereofdistribution, then, and in each such case, immediately after the close of business on such date, the Conversion Rate shall be readjusted to increased so that the same shall equal the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution.
(d) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
(i) any dividends or distributions referred to in Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = determined by multiplying the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding Common Stock Record Date by a fraction of which the Ex-Dividend Date for numerator shall be such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average Sale Price of the Last Reported Common Stock and the denominator shall be such Sale Prices Price of Ordinary Shares over the 10 consecutive Trading Day period ending on Common Stock less the Trading Day immediately preceding the Ex-Dividend Date for such distribution; amount of Cash and FMV = the Fair Market Value (as determined by the Board so determined) of Directors such other consideration so distributed (and not excluded as provided above) applicable to one share of the Company) on the Ex-Dividend Date for such distribution of the shares of Capital Common Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become such increase to be effective immediately prior to 9:00 a.m., New York City time, the opening of business on the Ex-Dividend Date day following the Common Stock Record Date; provided, however, that no adjustment will be made in respect of any such dividends and distributions that are paid during any period for which we are paying contingent interest to Holders; provided, further, that, if the portion of the Cash so distributed applicable distribution. If “FMV” (as defined above) to one share of Common Stock is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Offthe Market Price of the Common Stock on the day preceding the date of declaration of such dividend or distribution then, in lieu of the adjustment described in this Section 12.03(d)foregoing adjustment, adequate provision shall be made so that each Holder of Notes shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Common Stock, evidences of indebtedness, securities or rights, warrants or options to purchase Cash and other consideration the Company’s securities, as applicable, that such Holder would have received if had such Holder had converted such Notes Note immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of shares of Capital Common Stock of any class or series, or similar Equity Interest, in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distributionRecord Date. If any such dividend or distribution described in this Section 12.03(d) is declared but not so paid or made, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to be the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an If any adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10this Section 3.7(d) as a result of a distribution that is a quarterly dividend, such adjustment shall be based upon the amount by which such distribution exceeds the amount of the quarterly cash dividend permitted to be excluded pursuant hereto. In addition, except If an adjustment is required to be made as set forth in this Section 12.063.7(d) above as a result of a distribution that is not a quarterly dividend, in such adjustment shall be based upon the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (full amount of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If For purposes of this Section 3.7, the number of shares of Common Stock at any dividends or other distributions by time outstanding shall not include shares held in the treasury of the Company consisting exclusively but shall include shares issuable in respect of cash to all scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not pay any dividend or substantially all holders make any distribution on shares of Ordinary Shares (other than dividends or distributions made Common Stock held in connection with liquidation, dissolution or winding-up the treasury of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(f) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”) (prior to giving effect to such tender or exchange offer); OS’ = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tende
Appears in 1 contract
Sources: Third Supplemental Indenture (Electronic Data Systems Corp /De/)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company subject to adjustment from time to time, without duplication, as follows:
(a) If In case the Company issues Ordinary Shares to all shall (i) pay a dividend, or substantially all holders make a distribution on its Common Stock, payable exclusively in shares of Ordinary Shares as Common Stock or other Capital Stock of the Company; (ii) subdivide or split its outstanding Common Stock into a dividend greater number of shares; (iii) combine or distributionreclassify its outstanding Common Stock into a smaller number of shares; or (iv) issue by reclassification of the shares of Common Stock any shares of the Company’s Capital Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m.immediately prior to the record date or effective date, New York City timeas the case may be, on for the Trading Day immediately preceding adjustment pursuant to this Section 9.8(a) as described below, shall be adjusted so that the Ex-Dividend Date Holder of any Notes thereafter surrendered for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; OS0 = conversion shall be entitled to receive the number of Ordinary Shares outstanding at 5:00 p.m.shares of Common Stock and/or Capital Stock which such Holder would have owned or have been entitled to receive after the happening of any of the events described above had such Notes been converted immediately prior to such record date or effective date, New York City time, on as the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distributioncase may be. Such An adjustment made pursuant to this Section 9.8(a) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for such applicable record date in the case of a dividend or distributiondistribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or reclassification of the Common Stock. If any dividend or distribution of the type described in this Section 12.03(aclause (i) above is declared but not so paid or made, the Conversion Rate shall again be adjustedimmediately readjusted, effective as of the date the Company publicly announces Board of Directors determines not to make pursue such dividend or distributionaction, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If any subdivision or split, combination or reclassification or issuance of the type described in clauses (ii) through (iv) of this Section 9.8(a) is not so made, the Conversion Rate shall again be immediately readjusted, effective as of the date the Board of Directors determines not to pursue such action, to the Conversion Rate that would then be in effect if such subdivision or split, combination or reclassification or issuance had not been declared.
(b) If In case the Company effects at any time or from time to time after the issuance of the Notes shall issue rights or warrants to all or substantially all holders of the Common Stock entitling them to purchase Common Stock for a subdivision period of 60 days from the date of issuance of such rights or combination warrants at a price per share less (or having a conversion price per share less) than the Current Market Price per share of Ordinary SharesCommon Stock, the Conversion Rate will shall be adjusted based on so that the following formula: where, CR0 = same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the record date fixed for determination of stockholders entitled to receive such rights or warrants (prior to any adjustment in accordance with this Section 9.8(b)) by a fraction of which (i) the numerator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at 5:00 p.m., New York City time, the Current Market Price per share of Common Stock on the earlier of such record date and the Trading Day immediately preceding the effective ex date for such issuance of such subdivision rights or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combinationwarrants. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately prior to 9:00 a.m., New York City time, after the opening of business on the day following the record date on which such split or combination becomes effective.
(c) If for the Company issues determination of stockholders entitled to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to receive such rights or warrants; and Z = . To the number extent that shares of Ordinary Shares equal Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall immediately be readjusted to the quotient Conversion Rate which would then be in effect had the adjustments made upon the issuance of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending been made on the Trading Day basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be immediately preceding readjusted to be the Conversion Rate which would then be in effect if such record date for the determination of shareholders entitled to receive such issuance was first publicly announcedrights or warrants had not been fixed. For purposes of this Section 12.03(c), in In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Pricessuch Current Market Price, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereofwarrants, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distributionDirectors.
(dc) If In case the Company distributes shares of Capital Stockshall, evidences of its indebtedness by dividend or other assetsin a merger, including securitiesamalgamation or consolidation or otherwise, of the Company distribute to all or substantially all the holders of the Ordinary SharesCommon Stock any evidences of Indebtedness, excluding:
shares of Capital Stock of any class or series, other securities, cash or assets (excluding (i) any dividends dividend, distribution or distributions issuance covered by those referred to in Section 12.03(a9.8(a) above;
or 9.8(b) hereof, (ii) shares delivered any dividend or distribution paid exclusively in connection with subdivisions of Ordinary Shares cash referred to in Section 12.03(b9.8(d), 9.8(f) above;
or 9.8(g) hereof or (iii) rights and warrants referred to in Section 12.03(c) above;
(iv) any dividend or distribution that constitutes a Spin-Offs Off which is covered by Section 9.8(e) hereof), or rights or warrants to which purchase any of its securities (including the provisions set forth below in this Section 12.03(d) shall apply;
(v) distribution of rights to all holders of Common Stock pursuant to a stockholders rights plan or the detachment of such rights under the terms of such stockholder rights plan but excluding those rights or warrants referred to in Section 9.8(b)) (any of the foregoing hereinafter in this Section 12.03(d9.8(c) below (to called the extent and as specified therein“Distributed Assets”); and
(vi) dividends or distributions referred to , then in Section 12.03(e) below. then each such case the Conversion Rate will shall be adjusted based on so that the following formula: where, CR0 = same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Trading Day immediately preceding record date fixed for determination of stockholders entitled to receive such distribution by a fraction of which (A) the Ex-Dividend Date for such distribution; CR’ = numerator shall be the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average Current Market Price per share of the Last Reported Sale Prices Common Stock and (B) the denominator shall be (1) the Current Market Price per share of Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = Common Stock less (2) the Fair Market Value on such record date (as determined in good faith by the Board of Directors Directors, whose determination shall be conclusive evidence of such Fair Market Value, and described in a certificate filed with the Trustee and the Paying Agent) of the Company) on the Ex-Dividend Date for such distribution portion of the shares Distributed Assets so distributed applicable to one share of Capital Common Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date record date for the determination of stockholders entitled to receive such distribution; provided, however, that, if (i) the Fair Market Value of the portion of the Distributed Assets so distributed applicable distribution. If “FMV” (as defined above) to one share of Common Stock is equal to or greater than “SP0” the Current Market Price of the Common Stock or (as defined above)ii) the Current Market Price of the Common Stock is greater than the Fair Market Value per share of such Distributed Assets by less than $1.00, other than in respect to a Public Spin-Offthen, in lieu of the adjustment described provided in this Section 12.03(d9.8(c), adequate provision shall be made so that each Holder of Notes shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversionthe shares of Common Stock, the kind and amount of assets (including cash)assets, shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s debt securities, as applicable, that such or rights or warrants comprising the Distributed Assets the Holder would have received if had such Holder had converted such Notes immediately prior to the record date for determining the shareholders determination of stockholders entitled to receive such distribution. With respect In the event that such distribution is not so paid or made, the Conversion Rate shall again be adjusted to an adjustment pursuant to this Section 12.03(dthe Conversion Rate which would then be in effect if such distribution had not been declared.
(d) where there has been a payment of a In case the Company shall make any distributions, by dividend or other distribution on the Ordinary Shares consists otherwise, consisting exclusively of cash to all or substantially all holders of outstanding shares of Capital Stock of any class or seriesCommon Stock, or similar Equity Interestthen, and in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Marketeach such case, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, the close of business on the Ex-Dividend Date record date fixed for the determination of holders of Common Stock entitled to receive such distribution by a fraction of which (A) the numerator shall be the Current Market Price per share of the Common Stock and (B) the denominator shall be (1) the Current Market Price per share of Common Stock minus (2) the amount per share of such distributions (appropriately adjusted from time to time for any stock dividends on or subdivisions or combination of Common Stock); provided, however, that if (i) the per share amount of such distribution will equals or exceeds the Current Market Price of the Common Stock or (ii) the Current Market Price of the Common Stock exceeds the per share amount of such distribution by less than $1.00, in lieu of the foregoing adjustment, adequate provision shall be increased based on made so that each Holder of a Note shall have the following formula: whereright to receive upon conversion, CR0 = such dividend or distribution such Holder would have received had such Holder converted each Note immediately prior to the record date for the determination of stockholders entitled to receive the distribution.
(e) In the event that the Company makes any distribution to all holders of Common Stock that constitutes a Spin-Off, the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Trading Day immediately preceding record date fixed for the Exdetermination of holders of Common Stock entitled to receive such distribution by a fraction of which (i) the numerator shall be the Spin-Dividend Date for Off Market Price per share of the Common Stock on such distribution; CR’ = record date plus the Spin-Off Market Price per Equity Interest of the Subsidiary or other business unit of the Company on such record date applicable to each share of Common Stock and (ii) the denominator shall be the Spin-Off Market Price per share of the Common Stock. The adjustment to the Conversion Rate set forth in effect on this Section 9.8(e) will occur at the Ex-Dividend Date for such distribution; FMV0 = earlier of (1) the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive 10th Trading Day period commencing onfrom, and including, the effective date of the Spin-Off; Off and MP0 = (2) the average date of the Last Reported Sale Prices Initial Public Offering of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of securities being distributed in the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to that Initial Public Offering is effected simultaneously with the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversionSpin-Off; provided, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d)however, rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances)that, which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): if (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence Spin-Off Market Price per Equity Interest of the earliest Trigger Event, whereupon such rights and warrants shall be deemed Subsidiary so distributed applicable to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per one share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) Common Stock is equal to or greater than “SP0” the Current Market Price of the Common Stock or (as defined above)ii) the Current Market Price of the Common Stock is greater than the Spin-Off Market price per Equity Interest of the Subsidiary by less than $1.00, in lieu of the adjustment described in this Section 12.03(e)foregoing adjustment, adequate provision shall be made so that each Holder of Notes a Note shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such distribution such Holder would have received if had such Holder had converted such Notes each Note immediately prior to the record date for determining the shareholders determination of stockholders entitled to receive such dividend or the distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(f) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to In case a tender offer or exchange offer made by the Company or any Subsidiary shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of its Subsidiaries for all or any portion consideration per share of the Ordinary Shares, to the extent that the Common Stock having a Fair Market Value (as determined below) in good faith by the Company’s Board of Directors, whose determination shall be conclusive and described in a resolution of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price Board of Ordinary Shares on the Trading Day immediately after Directors) that as of the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer time (the “Expiration DateTime”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) exceeds the Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate by a fraction,
(i) the numerator of which shall be the sum of (x) the Fair Market Value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the “Purchased Shares”) and (y) the product of (a) the number of shares of Common Stock outstanding (less any Purchased Shares) at the Expiration Time and (b) the Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time”, and
(ii) the denominator of which shall be the number of shares of Common Stock outstanding (including any Purchased Shares) at the Expiration Time multiplied by the Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, such adjustment to become effective immediately prior to giving effect the opening of business on the day following the Expiration Time. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again immediately be readjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made.
(g) In the event that the Company or any Subsidiary makes any payment in cash to repurchase Common Stocks, the consideration for which exceeded the average Closing Sale Prices of the Common Stock for the five consecutive Trading Days ending on the last date of such repurchase (the excess amount, the “Repurchase Premium”); OS’ = , and such repurchase (together with any other repurchases of Common Stock by the number Company or any Subsidiary concluded within 12 months of Ordinary Shares outstanding immediately after such repurchase, the Expiration Time consideration for which involved a Repurchase Premium) resulted in the payment by the Company or any Subsidiary of an aggregate consideration exceeding an amount equal to 10% of the Company’s Market Capitalization, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate by a fraction,
(after giving effect solely to such tendei) the numerator of which shall be the 9.8
Appears in 1 contract
Sources: Indenture (PSS World Medical Inc)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company from time to time, without duplication, as follows:
(a) If In case the Company issues Ordinary Shares to all Issuer shall: (i) pay a dividend, or substantially all holders of Ordinary Shares as make a dividend or distribution, the Conversion Rate will be adjusted based exclusively in shares of its capital stock, on the following formula: whereCommon Stock; (ii) subdivide its outstanding Common Stock into a greater number of shares; (iii) combine its outstanding Common Stock into a smaller number of shares; or (iv) reclassify its Common Stock, CR0 = the Conversion Rate in effect at 5:00 p.m.immediately prior to the record date or effective date, New York City timeas the case may be, on for the Trading Day immediately preceding adjustment pursuant to this Section 6.06(a) as described below, shall be adjusted so that the Ex-Dividend Date Holder of any 2023 Notes thereafter surrendered for such dividend or distribution; CR’ = conversion shall be entitled to receive the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; OS0 = the cash and number of Ordinary Shares outstanding at 5:00 p.m.shares of Common Stock of the Issuer which such Holder would have owned or have been entitled to receive after the happening of any of the events described above had such 2023 Notes been converted immediately prior to such record date or effective date, New York City time, on as the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distributioncase may be. Such An adjustment made pursuant to this Section 6.06(a) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for such applicable record date in the case of a dividend or distributiondistribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or reclassification of the Issuer's Common Stock. If any dividend or distribution of the type described in this Section 12.03(aclause (i) above is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared.
(b) If In case the Company effects Issuer shall issue rights or warrants to all holders of the Common Stock entitling them (for a subdivision period expiring within 60 days after the date of issuance of such rights or combination warrants) to subscribe for or purchase Common Stock at a price per share less than the Market Price per share of Ordinary Shares, the Conversion Rate will be adjusted based Common Stock on the following formula: whererecord date fixed for determination of shareholders entitled to receive such rights or warrants, CR0 = the Conversion Rate in effect immediately after such record date shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately after such record date by a fraction of which (i) the numerator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at 5:00 p.m., New York City time, the Market Price per share of Common Stock on the earlier of such record date or the Trading Day immediately preceding the effective ex date for such issuance of such subdivision rights or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combinationwarrants. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately prior to 9:00 a.m., New York City time, after the opening of business on the day following the record date on which such split or combination becomes effective.
(c) If for the Company issues determination of shareholders entitled to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to receive such rights or warrants; and Z = . To the number extent that shares of Ordinary Shares equal Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall be readjusted to the quotient Conversion Rate which would then be in effect had the adjustments made upon the issuance of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending been made on the Trading Day immediately preceding basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such record date for the determination of shareholders entitled to receive such issuance was first publicly announcedrights or warrants had not been fixed. For purposes of this Section 12.03(c), in In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Pricessuch Market Price, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company Issuer for such rights or warrants and any amount payable on exercise or conversion thereofwarrants, with the value of such consideration, if other than cash, to be determined by the Board of Directors Directors.
(c) In case the Issuer shall, by dividend or otherwise, distribute to all holders of the Company. If Common Stock any assets, debt securities or rights or warrants to purchase any of its securities (excluding (i) any dividend, distribution or issuance covered by those referred to in Section 6.06(a) or Section 6.06(b) hereof and (ii) any dividend or distribution paid exclusively in cash) (any of the type described foregoing hereinafter in this Section 12.03(a6.06(c) are called the "Distributed Assets or Securities") in an aggregate amount per share of Common Stock that, combined together with the aggregate amount of any other such distributions to all holders of its Common Stock made within the 12 months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to this Section 6.06(c) has been made, exceeds 15% of the Market Price on the Trading Day immediately preceding the declaration of such distribution, then the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the record date mentioned below by a fraction of which (A) the numerator shall be the Market Price per share of the Common Stock on the earlier of such record date or the Trading Day immediately preceding the ex date for such dividend or distribution, and (B) the denominator shall be (1) the Market Price per share of the Common Stock on the earlier of such record date or the Trading Day immediately preceding the ex date for such dividend or distribution less (2) the Fair Market Value on the earlier of such record date or the Trading Day immediately preceding the ex date for such dividend or distribution (as determined by the Board of Directors, whose determination shall be conclusive, and described in a certificate filed with the Trustee and the Paying Agent) of the Distributed Assets or Securities so distributed applicable to one share of Common Stock. Such adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution; provided, however, that, if (i) the Fair Market Value of the portion of the Distributed Assets or Securities so distributed applicable to one share of Common Stock is equal to or greater than the Market Price of the Common Stock on the record date for the determination of shareholders entitled to receive such distribution or (ii) the Market Price of the Common Stock on the record date for the determination of shareholders entitled to receive such distribution is greater than the Fair Market Value per share of such Distributed Assets or Securities by less than $1.00, then, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion, in addition to the cash and shares of Common Stock, the kind and amount of assets, debt securities, or rights or warrants comprising the Distributed Assets or Securities the Holder would have received had such Holder converted such 2023 Notes immediately prior to the record date for the determination of shareholders entitled to receive such distribution. In the event that such distribution is not so issuedpaid or made, the applicable Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, adjusted to the Conversion Rate that which would then be in effect if such issuance distribution had not been declared. If any right .
(d) In case the Issuer shall declare a cash dividend or warrant described in this Section 12.03(c) is not exercised cash distribution to all or converted prior to the expiration substantially all of the exercisability or convertibility thereofholders of Common Stock, the Conversion Rate shall be readjusted to increased so that the applicable Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on equal the Ex-Dividend Date for the applicable distribution.
(d) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
(i) any dividends or distributions referred to in Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = price determined by multiplying the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding the Ex-Dividend Date record date for such distribution; CR’ = dividend or distribution by a fraction,
(i) the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = numerator of which shall be the average of the Last Reported Sale Prices Price of Ordinary Shares over Common Stock for the 10 five consecutive Trading Day period Days ending on the Trading Day immediately preceding the Exrecord date for such dividend or distribution (the "Pre-Dividend Date for such distribution; and FMV = Sale Price"), and
(ii) the Fair Market Value (as determined by denominator of which shall be the Board of Directors of the Company) on the ExPre-Dividend Date for Sale Price, minus the full amount of such cash dividend or cash distribution applicable to one share of Common Stock (the shares of Capital Stock"Dividend Adjustment Amount"), evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such with such adjustment shall to become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date record date for such dividend or distribution; provided that if the applicable distribution. If “FMV” denominator of the foregoing fraction is less than $1.00 (as defined above) is equal to or greater than “SP0” (as defined aboveincluding a negative amount), other than in respect to a Public Spin-Off, then in lieu of the adjustment described in this Section 12.03(d)foregoing adjustment, adequate provision shall be made so that each Holder of Notes shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, the cash payable on and Common Stock issuable upon such conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that cash such Holder would have received if had such Holder had converted such Notes its 2023 Note solely into Common Stock at the then applicable Conversion Rate immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) where there has been a payment of a cash dividend or other distribution on the Ordinary Shares consists of shares of Capital Stock of any class or series, or similar Equity Interest, in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such cash distribution. If any such cash dividend or cash distribution described in this Section 12.03(d) is declared but not so paid or made, the applicable Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will again be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(fe) If the Company a Holder elects to convert 2023 Notes in connection with a corporate transaction that occurs on or any of its Subsidiaries purchases Ordinary Shares pursuant prior to July 15, 2008, that constitutes a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion Fundamental Change (other than as described in clause (iv) of the Ordinary Shares, to the extent that definition of Fundamental Change) and 10% or more of the Fair Market Value (as determined below) of the cash and any other consideration included in for the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value Common Stock (as determined by the Board of Directors Directors, whose determination shall be conclusive evidence of such Fair Market Value) in the Companycorporate transaction consists of (i) cash, (ii) other property or (iii) securities that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Expiration DateNasdaq National Market, of then the aggregate value of all Conversion Rate for the 2023 Notes surrendered for conversion by such Holder shall be adjusted so that such Holder will be entitled to receive cash and other consideration paid or payable for shares of Common Stock equal to the Ordinary Shares validly tendered or exchanged sum of (A) the Conversion Value and not withdrawn as of the Expiration Date; OS0 = (B) the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer additional shares of Common Stock (the “Expiration Time”"Additional Shares") (prior determined in the manner set forth below, subject in each case to giving effect to such tender or exchange offer); OS’ = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tendeIssuer's payment elections as described in Section 6.13
Appears in 1 contract
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company as follows:
(a) If the Company issues Ordinary Shares to all or substantially all holders shares of Ordinary Shares Common Stock as a dividend or distributiondistribution on all of the shares of the Common Stock, or effects a share split or share combination, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be; CR’ = the new Conversion Rate in effect on immediately after the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be; and OS’ = the number of Ordinary Shares that would be shares of Common Stock outstanding immediately after, and solely as a result of, after such dividend or distribution, or the effective date of such share split or share combination, as the case may be. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after (i) the Ex-Dividend Date for such dividend or distributiondistribution or (ii) the date on which such split or combination becomes effective, as applicable. If any dividend or distribution of the type described in this Section 12.03(a11.02(a) is declared but not so paid or made, the new Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company effects distributes to all holders of its Common Stock any rights or warrants (other than pursuant to any rights plan described in Section 11.02(c)(ii) below) entitling them to purchase, for a subdivision or combination period of Ordinary Sharesnot more than 45 days after the Ex-Dividend Date for the distribution, shares of Common Stock at a price per share less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding the effective date of Ex-Dividend Date for such subdivision or combinationdistribution; CR’ = the new Conversion Rate in effect on immediately after the effective date of Ex-Dividend Date for such subdivision or combinationdistribution; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding Ex-Dividend Date for such distribution; X = the effective date total number of shares of Common Stock issuable pursuant to such subdivision rights or combinationwarrants; and OS’ Y = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, shares of Common Stock equal to the aggregate price payable to exercise such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than divided by the average of the Last Reported Sale Prices of the Ordinary Shares during Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to such rights or warrants; and Z = the number of Ordinary Shares equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announceddistribution. For purposes of this Section 12.03(c11.02(b), in determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable for such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declaredDirectors. If any right or warrant described in this Section 12.03(c11.02(b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c11.02(b) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for the applicable distribution.
(dc) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, assets or property of the Company to all or substantially all the holders of the Ordinary SharesCommon Stock, excluding:
(i) any dividends or distributions referred to in Section 12.03(aclause (a) or (b) above;
(ii) shares delivered in connection rights issued to all holders of Common Stock pursuant to a rights plan, where such rights are not at the time of such distribution exercisable, continue to trade with subdivisions of Ordinary Shares referred to the Common Stock and Holders will receive such rights together with any Common Stock upon conversion as described in Section 12.03(b) above11.06;
(iii) rights and warrants referred to dividends or distributions paid exclusively in Section 12.03(c) above;cash; and
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(dclause (c) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such distribution; CR’ = the new Conversion Rate in effect on immediately after the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares the Common Stock over the 10 consecutive Trading Day period ending on on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the average of the Fair Market Value Values (as determined by the Board of Directors of the CompanyDirectors) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, assets or assets, including securities, so distributed, expressed as an amount per Ordinary Shareproperty distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d11.02(c), each Holder of Notes shall be entitled to receive receive, for each $1,000 Original Principal Amount of Notes, without conversion and at the same time and upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversionthe same terms as holders of Common Stock, the amount and kind and amount of our capital stock, evidences of the Company’s indebtedness or other assets or property of the Company (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, options or warrants or options to purchase acquire the Company’s capital stock or other securities, as applicable, ) that such Holder would have received if such Holder had converted such Notes immediately prior owned a number of shares of Common Stock equal to the record date Conversion Rate in effect on the Trading Day immediately preceding the Ex-Dividend Date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(dclause (c) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists Common Stock of shares of Capital Stock of any class or series, or similar Equity Interestequity interest, in of or relating to a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, before close of business on the Ex-Dividend Date tenth Trading Day immediately following, and including, the effective date of the distribution Spin-Off will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the tenth Trading Day immediately preceding following, and including, the Exeffective date of the Spin-Dividend Date for such distributionOff; CR’ = the new Conversion Rate in effect on immediately after the Extenth Trading Day immediately following, and including, the effective date of the Spin-Dividend Date for such distributionOff; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests equity interest distributed to holders of Ordinary Shares Common Stock applicable to one share of Ordinary Shares during Common Stock over the first 10 consecutive Trading Day period commencing onimmediately following, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during Common Stock over the first 10 consecutive Trading Day period commencing onimmediately following, and including, the effective date of the Spin-Off. Such adjustment shall become occur immediately after the tenth Trading Day immediately following, and including, the effective immediately prior date of the Spin-Off provided that, for purposes of determining the Conversion Rate, in respect of any conversion during the ten Trading Days following the effective date of any Spin-Off, references within the portion of this clause (c) related to 9:00 a.m., New York City time, on “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Exeffective date of such Spin-Dividend Date for such distributionOff and the relevant Conversion Date. If any such dividend or distribution described in this Section 12.03(dclause (c) is declared but not paid or made, the new Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d.
(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights cash dividend or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), is made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company)Common Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such dividend or distribution; CR’ = the new Conversion Rate in effect on immediately after the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices Price of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that Common Stock of the Company pays as a dividend or otherwise distributes to holders of Ordinary SharesCommon Stock. An adjustment to the Conversion Rate made pursuant to this Section 12.03(eclause (d) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e11.02(d), each Holder of Notes shall be entitled to receive receive, for each $1,000 Original Principal Amount of Notes, without conversion and at the same time and upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversionthe same terms as holders of Common Stock, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior owned a number of shares of Common Stock equal to the record date Conversion Rate on the Trading Day immediately preceding the Ex-Dividend Date for determining the shareholders entitled to receive such cash dividend or distribution. If any such dividend or distribution described in this Section 12.03(dclause (d) is declared but not so paid or made, the new Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not readjusted to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(fe) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to makes a payment in respect of a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary SharesCommon Stock, to the extent that the Fair Market Value (as determined below) of the cash and value of any other consideration included in the payment per Ordinary Share, share of Common Stock exceeds the Last reported Reported Sale Price of Ordinary Shares the Common Stock on the Trading Day immediately after next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amendedoffer, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, the close of business on the Expiration Datelast Trading Day of the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires; CR’ = the new Conversion Rate in effect immediately following the last Trading Day of the 10 consecutive Trading Day period commencing on the Trading Day immediately following next succeeding the Expiration Datedate such tender or exchange offer expires; AC = the Fair Market Value aggregate value of all cash and any other consideration (as determined by the Board of Directors of the CompanyDirectors) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered shares purchased in such tender or exchanged and not withdrawn as of the Expiration Dateexchange offer; OS0 = the number of Ordinary Shares shares of Common Stock outstanding immediately before prior to the last time tenders expiration of such tender or exchanges may be made pursuant to exchange offer; OS’ = the number of shares of Common Stock outstanding immediately after the expiration of such tender or exchange offer (the “Expiration Time”) (prior to after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); OSand SP’ = the average of the Last Reported Sale Prices of Common Stock over the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires. The adjustment to the Conversion Rate under this clause (e) shall become effective immediately following the tenth Trading Day next succeeding the date such tender or exchange offer expires; provided that, for purposes of determining the Conversion Rate, in respect of any conversion during the ten Trading Days following the date that any tender or exchange offer expires, references within this clause (e) to 10 Trading Days shall be deemed replaced with such lesser number of Ordinary Shares Trading Days as have elapsed between the date such tender or exchange offer expires and the relevant Conversion Date. If the Company or one of its Subsidiaries is obligated to purchase Common Stock pursuant to any such tender or exchange offer but are permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Conversion Rate shall be readjusted to be the Conversion Rate that would be in effect if such tender or exchange offer had not been made.
(f) Notwithstanding the foregoing provisions of this Section 11.02, no adjustment will be made thereunder, nor shall an adjustment be made to the ability of a Holder to convert, for any distribution described therein if the Holder will otherwise participate in the distribution without conversion of such Holder’s Notes as if such Holder held a number of shares of Common Stock equal to the Conversion Rate, multiplied by the Original Principal Amount (expressed in thousands) of the Notes held by such Holder, without having to convert its Notes. Further, if the application of the foregoing formulas in this Section 11.02 would result in a decrease in the Conversion Rate, no adjustment to the Conversion Rate will be made (except on account of share combinations).
(g) No adjustment to the Conversion Rate will be made unless as specifically set forth in this Section 11.02 and Section 11.03.
(h) Without limiting the foregoing, no adjustment to the Conversion Rate need be made:
(i) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in shares of Common Stock under any plan;
(ii) upon the issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present or future employee, director or consultant benefit plan or program or employee stock purchase plan of or assumed by the Company or any of its Subsidiaries;
(iii) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security not described in clause (ii) above and outstanding immediately as of the Issue Date;
(iv) for a change in the par value of the Common Stock;
(v) for accrued and unpaid interest; or
(vi) for accretion of the Accreted Principal Amount.
(i) No adjustment to the Conversion Rate will be required unless the adjustment would require an increase or decrease of at least 1% of the Conversion Rate. If the adjustment is not made because the adjustment does not change the Conversion Rate by at least 1%, then the adjustment that is not made will be carried forward and taken into account in any future adjustment. All required calculations will be made to the nearest cent or 1/1000th of a share, as the case may be. Notwithstanding the foregoing, the Company shall make such carried forward adjustments, regardless of whether the aggregate adjustment is less than 1%, (i) on the Conversion Date for any Notes and (ii) if the Notes are called for redemption, all adjustments not previously made will be made for all the Notes to be converted after the Expiration Time (Company’s notice of redemption to the applicable Redemption Date. If a Conversion Rate adjustment becomes effective on any Ex-Dividend Date in accordance with Section 11.02, and a Holder that has converted its Notes on or after giving effect solely such Ex-Dividend Date and on or prior to the related Record Date would be treated as the Record Holder of Common Stock as of the related Conversion Date as provided in Section 11.01(c) based on an adjusted Conversion Rate for such Ex-Dividend Date, then, notwithstanding the Conversion Rate adjustment provisions in Section 11.02, the Conversion Rate adjustment relating to such tendeEx-Dividend Date shall not be made for such converting Holder. Instead, such Holder shall be treated as if such Holder were the record owner of shares of Common Stock on an unadjusted basis on such Conversion Date and participate in the related dividend
Appears in 1 contract
Sources: First Supplemental Indenture (Goodrich Petroleum Corp)
Adjustments to Conversion Rate. The If the number of Ordinary Shares represented by each ADS is changed, after the date of this Note, for any reason other than one or more of the events described in this Section 5.4, the Company shall make an appropriate adjustment to the Conversion Rate such that the number of Ordinary Shares represented by the ADSs upon which conversion of the Note is based remains the same. In addition, the Conversion Rate shall be adjusted from time to time by the Company as follows:
(a) If In case the Company issues shall, at any time or from time to time while the Note is outstanding, pay a dividend in Ordinary Shares (directly or in the form of ADSs) or make a distribution in Ordinary Shares to all or substantially all holders of Ordinary Shares as a dividend or distributionShares, then the Conversion Rate will shall be adjusted based on the following formula: where, where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Ex-Dividend Record Date for such dividend or distribution; CR’ CR1 = the Conversion Rate in effect on the Ex-Dividend Record Date for such dividend or distribution; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Ex-Dividend Record Date for such dividend or distribution; and OS’ OS1 = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distribution. Such Any adjustment made pursuant to this Section 5.4(a) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Record Date for such dividend or distribution. If any dividend or distribution that is the subject of the type described in this Section 12.03(a5.4(a) is declared but not so paid or made, the Conversion Rate shall again be adjustedimmediately readjusted, effective as of the date the Board of Directors of the Company (the “Board of Directors”) publicly announces its decision not to pay or make such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. For purposes of this Section 5.4(a), the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the trading day immediately preceding the Record Date for such dividend or distribution shall not include Ordinary Shares held in treasury, if any. The Company shall not pay any dividend or make any distribution on Ordinary Shares held in treasury, if any.
(b) If In case outstanding Ordinary Shares (directly or in the Company effects form of ADSs) shall be subdivided or split into a subdivision or combination greater number of Ordinary SharesShares or combined or reverse split into a smaller number of Ordinary Shares (in each case, other than as a result of a transaction for which appropriate adjustment has been made in accordance with Section 5.5), the Conversion Rate will shall be adjusted based on the following formula: where, where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the effective date of such subdivision subdivision, split, reverse split or combination; CR’ CR1 = the Conversion Rate in effect on the effective date of such subdivision subdivision, split, reverse split or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the effective date of such subdivision subdivision, split, reverse split or combination; and OS’ OS1 = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision subdivision, split, reverse split or combination. Such Any adjustment made pursuant to this Section 5.4(b) shall become effective immediately prior to 9:00 a.m., New York City time, on the effective date on which of such subdivision, split, reverse split or combination becomes effectivecombination.
(c) If In case the Company issues shall issue rights (other than rights issued pursuant to a shareholders’ rights plan or a dividend or distribution in Ordinary Shares as set forth in (a) above), options or warrants to all or substantially all the holders of Ordinary Shares any rights (directly or warrants (in the form of ADSs), other than pursuant to any rights plan described an issuance as a result of a transaction for which appropriate adjustment has been made in accordance with Section 12.03(d)(iii) below) 5.5, entitling them to purchase, for a period of not more than 45 expiring within forty-five (45) calendar days after of the date of the announcement for such issuance, Ordinary Shares (directly or in the form of ADSs) at an aggregate a price per share Ordinary Share less than the average of the Last Reported Closing Sale Prices of the Ordinary Shares during the 10 ten (10) consecutive Trading Day trading day period ending on the Trading Day trading day immediately preceding the date of announcement of such issuance was first publicly announcedissuance, then the Conversion Rate will shall be adjusted increased based on the following formula: where, where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Ex-Dividend Record Date for such issuance; CR’ CR1 = the Conversion Rate in effect on the Ex-Dividend Record Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Ex-Dividend Record Date for such issuance; Y X = the total number of Ordinary Shares issuable (directly or in the form of ADSs) pursuant to such rights rights, options or warrants; and Z Y = the number of Ordinary Shares equal to the quotient of (x) the aggregate price payable to exercise such rights rights, options or warrants warrants, divided by (y) the average of the Last Reported Closing Sale Prices of Ordinary Shares during the 10 ten (10) consecutive Trading Day trading day period ending on the Trading Day trading day immediately preceding the date of announcement of such issuance was first publicly announcedissuance. For purposes of Any adjustment made pursuant to this Section 12.03(c)5.4(c) shall become effective immediately prior to 9:00 a.m., in determining whether any rights or warrants entitle New York City time, on the Holders to subscribe for or purchase Ordinary Shares at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable Record Date for such Ordinary Shares, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Companyissuance. If any rights rights, options or warrants of the type described in this Section 12.03(a5.4(c) are not so issued, the Conversion Rate shall again be immediately readjusted, effective as of the date the Company Board of Directors publicly announces its decision not to issue such rights rights, options or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right To the extent that such rights, options or warrant described in this Section 12.03(c) is warrants are not exercised or converted prior to their expiration or Ordinary Shares are otherwise not delivered pursuant to such rights, options or warrants upon the expiration exercise of the exercisability such rights, options or convertibility thereofwarrants, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights, options or warrants been made on the basis of delivery of only the number of Ordinary Shares actually delivered (directly or in the form of ADSs). In determining the aggregate price payable to exercise such rights, options and warrants, there shall be taken into account any consideration received by the Company for such rights, options or warrants and the value of such consideration (if such right or warrant had not been so issuedother than cash, to be determined in good faith by the Board of Directors). Any adjustment made pursuant to For purposes of this Section 12.03(c) shall become effective immediately prior to 9:00 a.m.5.4(c), the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Ex-Dividend trading day immediately preceding the Record Date for the applicable distributionsuch issuance shall not include Ordinary Shares held in treasury, if any. The Company shall not issue any such rights, options or warrants in respect of Ordinary Shares held in treasury, if any.
(d) If In case the Company distributes shares shall, by dividend or otherwise, distribute to all or substantially all holders of Capital Stock, Ordinary Shares (directly or in the form of ADSs) any class of capital stock of the Company or evidences of its indebtedness or other assets, assets (including securities, of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
but excluding (i) any dividends or distributions referred to in Section 12.03(a) above;
5.4(a), (ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and any rights, options or warrants referred to in Section 12.03(c5.4(c), (iii) above;
any dividends or distributions of exclusively cash referred to in Section 5.4(e), (iv) any dividends or distributions as a result of a transaction for which appropriate adjustment has been made in accordance with Section 5.5, or (v) any Spin-Offs to which the provisions set forth below in this Section 12.03(d5.4(d) shall apply;
applies) (v) any of such class of capital stock, evidences of indebtedness or assets, including those subject to any Spin-Off, the rights or warrants referred to “Distributed Assets”), then, in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then each such case, the Conversion Rate will shall be adjusted increased based on the following formula: where, where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Ex-Dividend Record Date for such distribution; CR’ CR1 = the Conversion Rate in effect on the Ex-Dividend Record Date for such distribution; SP0 = the average of the Last Reported Closing Sale Prices of Ordinary Shares over during the 10 ten (10) consecutive Trading Day trading day period ending on the Trading Day trading day immediately preceding the Ex-Dividend Record Date for such distribution; and FMV = the Fair Market Value (as determined by the Board of Directors of the Company) fair market value on the Ex-Dividend Record Date for such distribution of the Distributed Assets applicable to one (1) Ordinary Share, as determined in good faith by the Board of Directors. In the event where there has been a payment of a dividend or other distribution on the Ordinary Shares (directly or in the form of ADSs) or shares of Capital Stock, evidences capital stock of indebtednessany class or series, or assetssimilar equity interest, of or relating to a Subsidiary or other business unit of the Company (a “Spin-Off”) that are, or when issued, will be, traded, listed or admitted for trading or listing on the New York Stock Exchange, the Nasdaq Global Market, the Nasdaq Global Select Market or any other U.S. national securities exchange or market, then the Conversion Rate shall instead be increased based on the following formula: where CR0 = the Conversion Rate in effect immediately prior to the end of the Spin-Off Valuation Period (as defined below); CR1 = the Conversion Rate in effect immediately after the end of the Spin-Off Valuation Period; FMV0 = the average of the Closing Sale Prices of the Distributed Assets during the ten consecutive trading day period commencing on and including securities, so distributed, expressed as an amount per the effective date of the Spin-Off (the “Spin-Off Valuation Period”) applicable to one (1) Ordinary Share; and MP0 = the average of the Closing Sale Prices of Ordinary Shares during the Spin-Off Valuation Period. Such In respect of any conversion during the Spin-Off Valuation Period, references in the portion of this Section 5.4(d) related to Spin-Offs to ten trading days shall be deemed to be replaced with such lesser number of trading days as have elapsed from, and including, the effective date of such Spin-Off to, and including, the Conversion Date in determining the Conversion Rate for such conversion. Any adjustment made pursuant to this Section 5.4(d) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Record Date for such distribution, or, in the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to case of a Public Spin-Off, in lieu immediately after the end of the adjustment Spin-Off Valuation Period. If any dividend or distribution of the type described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of shares of Capital Stock of any class or series, or similar Equity Interest, in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d5.4(d) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Company Board of Directors publicly announces its decision not to make pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under foregoing, in connection with any dividend or distribution referred to in this Section 12.025.4(d), the Holder may elect to receive, in lieu of the foregoing adjustments, in respect of each US$1,000 principal amount of the Note, at the same time and upon the same terms as holders of Ordinary Shares or ADSs receive the Distributed Assets, the amount and kind of Distributed Assets the Holder would have received if an adjustment to such holder had converted such principal amount of the Note into a number of ADSs at the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period as in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed effect immediately prior to the extent necessary in order to complete Record Date for the calculations provided for in this Section 12.03(d)distribution. For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights Rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares (whether direct or in the form of ADSs) entitling the holders thereof to subscribe for or purchase shares of Capital Stock the Company’s capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) 5.4 (and no adjustment to the Conversion Rate under this Section 5.4 will be required required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d5.4(d), except as set forth under Section 12.06. If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Note, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event Record Date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10rights. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 5.4 was made, (aA) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, repurchase and (bB) in the case of such rights or warrant warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by In case the Company consisting exclusively of cash shall pay a dividend or otherwise distribute to all or substantially all holders of its Ordinary Shares (direct or in the form of ADSs) a dividend or other than dividends or distributions made in connection with liquidationdistribution of exclusively cash, dissolution or winding-up of the Company), then the Conversion Rate will shall be adjusted increased based on the following formula: where, where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Ex-Dividend Record Date for such dividend or distribution; CR’ CR1 = the Conversion Rate in effect on the Ex-Dividend Record Date for such dividend or distribution; SP0 = the average of the Last Reported Closing Sale Prices of the Ordinary Shares during the 10 ten (10) consecutive Trading Day trading day period ending on, and including, on the Trading Day trading day immediately preceding the Ex-Dividend Record Date for such dividend or distribution; and C DIV = the amount in cash per share of Ordinary Shares that Share the Company pays as a dividend or otherwise distributes to holders of its Ordinary SharesShares (direct or in the form of ADSs). An Any adjustment to the Conversion Rate made pursuant to this Section 12.03(e5.4(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Record Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution of the type described in this Section 12.03(d5.4(e) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Company Board of Directors publicly announces its decision not to make pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, in connection with any dividend or distribution referred to in this Section 5.4(e), the Holder may elect to receive, in lieu of the foregoing adjustments, in respect of each US$1,000 principal amount of the Note, at the same time and upon the same terms as holders of Ordinary Shares or ADSs receive such dividend or distribution, the amount of such dividend or distribution in cash the Holder would have received if the such holder had converted such principal amount of the Note into a number of ADSs at the Conversion Rate as in effect immediately prior to the Record Date for the distribution.
(f) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”) (prior to giving effect to such tender or exchange offer); OS’ = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tendeIn case
Appears in 1 contract
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company subject to adjustment from time to time, without duplication, as follows:
(a) If In case the Company issues Ordinary Shares to all shall (i) pay a dividend, or substantially all holders make a distribution on its Common Stock, payable exclusively in shares of Ordinary Shares as Common Stock or other Capital Stock of the Company; (ii) subdivide or split its outstanding Common Stock into a dividend greater number of shares; (iii) combine or distributionreclassify its outstanding Common Stock into a smaller number of shares; or (iv) issue by reclassification of the shares of Common Stock any shares of the Company’s Capital Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m.immediately prior to the record date or effective date, New York City timeas the case may be, on for the Trading Day immediately preceding adjustment pursuant to this Section 9.8(a) as described below, shall be adjusted so that the Ex-Dividend Date Holder of any Notes thereafter surrendered for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; OS0 = conversion shall be entitled to receive the number of Ordinary Shares outstanding at 5:00 p.m.shares of Common Stock and/or Capital Stock which such Holder would have owned or have been entitled to receive after the happening of any of the events described above had such Notes been converted immediately prior to such record date or effective date, New York City time, on as the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distributioncase may be. Such An adjustment made pursuant to this Section 9.8(a) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for such applicable record date in the case of a dividend or distributiondistribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or reclassification of the Common Stock. If any dividend or distribution of the type described in this Section 12.03(aclause (i) above is declared but not so paid or made, the Conversion Rate shall again be adjustedimmediately readjusted, effective as of the date the Company publicly announces Board of Directors determines not to make pursue such dividend or distributionaction, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If any subdivision or split, combination or reclassification or issuance of the type described in clauses (ii) through (iv) of this Section 9.8(a) is not so made, the Conversion Rate shall again be immediately readjusted, effective as of the date the Board of Directors determines not to pursue such action, to the Conversion Rate that would then be in effect if such subdivision or split, combination or reclassification or issuance had not been declared.
(b) If In case the Company effects at any time or from time to time after the issuance of the Notes shall issue rights or warrants to all or substantially all holders of the Common Stock entitling them to subscribe for or purchase Common Stock at a subdivision price per share less (or combination having a conversion price per share less) than the Current Market Price per share of Ordinary SharesCommon Stock, the Conversion Rate will shall be adjusted based on so that the following formula: where, CR0 = same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the record date fixed for determination of stockholders entitled to receive such rights or warrants (prior to any adjustment in accordance with this Section 9.8(b)) by a fraction of which (i) the numerator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at 5:00 p.m., New York City time, the Current Market Price per share of Common Stock on the earlier of such record date and the Trading Day immediately preceding the effective ex date for such issuance of such subdivision rights or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combinationwarrants. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately prior to 9:00 a.m., New York City time, after the opening of business on the day following the record date on which such split or combination becomes effective.
(c) If for the Company issues determination of stockholders entitled to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to receive such rights or warrants; and Z = . To the number extent that shares of Ordinary Shares equal Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall immediately be readjusted to the quotient Conversion Rate which would then be in effect had the adjustments made upon the issuance of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending been made on the Trading Day basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be immediately preceding readjusted to be the Conversion Rate which would then be in effect if such record date for the determination of shareholders entitled to receive such issuance was first publicly announcedrights or warrants had not been fixed. For purposes of this Section 12.03(c), in In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Pricessuch Current Market Price, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereofwarrants, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distributionDirectors.
(dc) If In case the Company distributes shares of Capital Stockshall, evidences of its indebtedness by dividend or other assetsin a merger, including securitiesamalgamation or consolidation or otherwise, of the Company distribute to all or substantially all the holders of the Ordinary SharesCommon Stock any evidences of Indebtedness, excluding:
shares of Capital Stock of any class or series, other securities, cash or assets (excluding (i) any dividends dividend, distribution or distributions issuance covered by those referred to in Section 12.03(a9.8(a) above;
or 9.8(b) hereof, (ii) shares delivered any dividend or distribution paid exclusively in connection with subdivisions of Ordinary Shares cash referred to in Section 12.03(b9.8(d) above;
hereof or (iii) rights and warrants referred to in Section 12.03(c) above;
(iv) any dividend or distribution that constitutes a Spin-Offs Off which is covered by Section 9.8(e) hereof), or rights or warrants to which subscribe for or purchase any of its securities (including the provisions set forth below in this Section 12.03(d) shall apply;
(v) distribution of rights to all holders of Common Stock pursuant to a stockholders rights plan or the detachment of such rights under the terms of such stockholder rights plan but excluding those rights or warrants referred to in Section 9.8(b)) (any of the foregoing hereinafter in this Section 12.03(d9.8(c) below (to called the extent and as specified therein“Distributed Assets”); and
(vi) dividends or distributions referred to , then in Section 12.03(e) below. then each such case the Conversion Rate will shall be adjusted based on so that the following formula: where, CR0 = same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Trading Day immediately preceding record date fixed for determination of stockholders entitled to receive such distribution by a fraction of which (A) the Ex-Dividend Date for such distribution; CR’ = numerator shall be the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average Current Market Price per share of the Last Reported Sale Prices Common Stock and (B) the denominator shall be (1) the Current Market Price per share of Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = Common Stock less (2) the Fair Market Value on such record date (as determined in good faith by the Board of Directors Directors, whose determination shall be conclusive evidence of such Fair Market Value, and described in an Officers’ Certificate filed with the Trustee and the Paying Agent) of the Company) on the Ex-Dividend Date for such distribution portion of the shares Distributed Assets so distributed applicable to one share of Capital Common Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date record date for the determination of stockholders entitled to receive such distribution; provided, however, that, if (i) the Fair Market Value of the portion of the Distributed Assets so distributed applicable distribution. If “FMV” (as defined above) to one share of Common Stock is equal to or greater than “SP0” the Current Market Price of the Common Stock or (as defined above)ii) the Current Market Price of the Common Stock is greater than the Fair Market Value per share of such Distributed Assets by less than $1.00, other than in respect to a Public Spin-Offthen, in lieu of the adjustment described provided in this Section 12.03(d9.8(c), adequate provision shall be made so that each Holder of Notes shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversionthe shares of Common Stock, the kind and amount of assets (including cash)assets, shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s debt securities, as applicable, that such or rights or warrants comprising the Distributed Assets the Holder would have received if had such Holder had converted such Notes immediately prior to the record date for determining the shareholders determination of stockholders entitled to receive such distribution. With respect In the event that such distribution is not so paid or made, the Conversion Rate shall again be adjusted to an adjustment pursuant to this Section 12.03(dthe Conversion Rate which would then be in effect if such distribution had not been declared.
(d) where there has been a payment of a In case the Company shall make any distributions, by dividend or other distribution on the Ordinary Shares consists otherwise, consisting exclusively of cash to all or substantially all holders of outstanding shares of Capital Stock of any class or seriesCommon Stock, or similar Equity Interestthen, and in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Marketeach such case, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, the close of business on the Ex-Dividend Date record date fixed for the determination of holders of Common Stock entitled to receive such distribution by a fraction of which (A) the numerator shall be the Current Market Price per share of the Common Stock and (B) the denominator shall be (1) the Current Market Price per share of Common Stock minus (2) the amount per share of such distributions (appropriately adjusted from time to time for any stock dividends on or subdivisions or combination of Common Stock); provided, however, that if (i) the per share amount of such distribution will equals or exceeds the Current Market Price of the Common Stock or (ii) the Current Market Price of the Common Stock exceeds the per share amount of such distribution by less than $1.00, in lieu of the foregoing adjustment, adequate provision shall be increased based on made so that each Holder of a Note shall have the following formula: whereright to receive upon conversion, CR0 = such dividend or distribution such Holder would have received had such Holder converted each Note immediately prior to the record date for the determination of stockholders entitled to receive the distribution.
(e) In the event that the Company makes any distribution to all holders of Common Stock that constitutes a Spin-Off, the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Trading Day immediately preceding record date fixed for the Exdetermination of holders of Common Stock entitled to receive such distribution by a fraction of which (i) the numerator shall be the Spin-Dividend Date for Off Market Price per share of the Common Stock on such distribution; CR’ = record date plus the Spin-Off Market Price per Equity Interest of the Subsidiary or other business unit of the Company on such record date applicable to each share of Common Stock and (ii) the denominator shall be the Spin-Off Market Price per share of the Common Stock. The adjustment to the Conversion Rate set forth in effect on this Section 9.8(e) will occur at the Ex-Dividend Date for such distribution; FMV0 = earlier of (1) the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive 10th Trading Day period commencing onfrom, and including, the effective date of the Spin-Off; Off and MP0 = (2) the average date of the Last Reported Sale Prices Initial Public Offering of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of securities being distributed in the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to that Initial Public Offering is effected simultaneously with the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversionSpin-Off; provided, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d)however, rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances)that, which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): if (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence Spin-Off Market Price per Equity Interest of the earliest Trigger Event, whereupon such rights and warrants shall be deemed Subsidiary so distributed applicable to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per one share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) Common Stock is equal to or greater than “SP0” the Current Market Price of the Common Stock or (as defined above)ii) the Current Market Price of the Common Stock is greater than the Spin-Off Market price per Equity Interest of the Subsidiary by less than $1.00, in lieu of the adjustment described in this Section 12.03(e)foregoing adjustment, adequate provision shall be made so that each Holder of Notes a Note shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such distribution such Holder would have received if had such Holder had converted such Notes each Note immediately prior to the record date for determining the shareholders determination of stockholders entitled to receive such dividend or the distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(f) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to In case a tender offer or exchange offer made by the Company or any Subsidiary shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of its Subsidiaries for all or any portion consideration per share of the Ordinary Shares, to the extent that the Common Stock having a Fair Market Value (as determined below) in good faith by the Company’s Board of Directors, whose determination shall be conclusive and described in a resolution of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price Board of Ordinary Shares on the Trading Day immediately after Directors) that as of the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer time (the “Expiration DateTime”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) exceeds the Closing Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate by a fraction,
(i) the numerator of which shall be the sum of (x) the Fair Market Value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the “Purchased Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) at the Expiration Time and the Closing Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time”, and
(ii) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Closing Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, such adjustment to become effective immediately prior to giving effect the opening of business on the day following the Expiration Time. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer); OS’ = , but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again immediately be readjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made.
(g) Upon conversion of the Notes, the Holders shall receive, if they receive shares of Common Stock, in addition to the Common Stock issuable upon such conversion, the rights issued under any shareholder rights plan the Company implements (notwithstanding the occurrence of an event causing such rights to separate from the Common Stock at or prior to the time of conversion) unless, prior to conversion, the rights have expired, terminated or been redeemed or exchanged in accordance with the rights plan. If, and only if, the Holders of Notes receive rights under such shareholder rights plans as described in the preceding sentence upon conversion of their Notes, then no other adjustment pursuant to this Section 9.8 shall be made in connection with such shareholder rights plans.
(h) For purposes of this Section 9.8, the number of Ordinary Shares shares of Common Stock at any time outstanding immediately after shall not include shares held in the Expiration Time treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(after giving effect solely i) Notwithstanding any of the foregoing, in no event shall the Conversion Rate as adjusted pursuant to such tendethis Section 9.8 exceed 41.2881 shares of Common Stock issuable upon conversion per $1,000 principal amount of Notes, other than on account of proportional adjustments to the Conversion Rate in the manner set forth in paragraphs (a) through (c) of this Section 9.8.
Appears in 1 contract
Sources: Indenture (Aar Corp)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company as follows:described below, except that the Company will not make any adjustments to the Conversion Rate if Holders of the Notes participate (as a result of holding the Notes, and at the same time as holders of the Common Stock participate) in any of the transactions described in this Section 6.03 as if such Holders of the Notes held a number of shares of the Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holders, without having to convert their Notes.
(a) If the Company issues Ordinary Shares to all or substantially all holders shares of Ordinary Shares Common Stock as a dividend or distributiondistribution on shares of the Common Stock, or effects a share split or share combination, the Conversion Rate will be adjusted based on the following formula: CR1=CR0 x OS1 OS0 where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for of such dividend or distribution; CR’ , or the effective date of such share split or share combination, as applicable CR1 = the Conversion Rate in effect on the immediately after such Ex-Dividend Date for such dividend or distribution; effective date, as applicable OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the prior to such Ex-Dividend Date for such dividend or distribution; and OS’ effective date, as applicable OS1 = the number of Ordinary Shares that would be shares of Common Stock outstanding immediately afterprior to such Ex-Dividend Date or effective date, and solely as a result ofapplicable, after giving pro forma effect to such dividend dividend, distribution, share split or distribution. share combination Such adjustment shall become effective immediately prior to after 9:00 a.m., New York City time, on the Ex-Dividend Business Day following the Record Date for such dividend or distribution, or the date fixed for determination for such share split or share combination. The Company will not pay any dividend or make any distribution on shares of Common Stock held in treasury by the Company. If any dividend or distribution of the type described in this Section 12.03(a6.03(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company effects a subdivision or combination distributes to holders of Ordinary Shares, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares Common Stock any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 60 calendar days after the date to subscribe for or purchase shares of the announcement for such issuance, Ordinary Shares Common Stock at an aggregate a price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during Common Stock for the 10 consecutive Trading Trading-Day period ending on the Trading Day immediately preceding the date of announcement of such issuance was first publicly announceddistribution, then the Conversion Rate will be adjusted based on the following formula: CR1=CR0 x OS0+X OS0+Y where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior the Ex-Dividend Date for such issuance; CR’ distribution CR1 = the Conversion Rate in effect on the immediately after such Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the after such Ex-Dividend Date for such issuance; Y X = the total number of Ordinary Shares shares of Common Stock issuable pursuant to such rights or warrants; and Z warrants Y = the number of Ordinary Shares shares of Common Stock equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the Common Stock over the 10 consecutive Trading Trading-Day period ending on the Trading Day immediately preceding the date of announcement of the distribution of such rights or warrants Such adjustment shall be successively made whenever any such rights or warrants are issued and shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the date fixed for such determination. The Company shall not issue any such rights, options or warrants in respect of shares of Common Stock held in treasury by the Company. To the extent that shares of Common Stock are not delivered after the expiration of such rights or warrants, or such rights or warrants are not exercised prior to their expiration, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance was first publicly announcedof such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. For purposes If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such date fixed for the determination of this Section 12.03(c), in stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable such Last Reported Sale PricesPrice, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Company’s Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distributionDirectors.
(dc) If the Company distributes shares of Capital Stockits capital stock, evidences of its indebtedness or other assets, including securities, assets or property of the Company to holders of all or substantially all the holders of the Ordinary SharesCommon Stock, excluding:
(i) any dividends or distributions and rights or warrants referred to in Section 12.03(a6.03(a) or (b) above;
(ii) shares delivered dividends or distributions paid exclusively in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;cash; and
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth as described below in this Section 12.03(d6.03(c) shall apply;
(v) the rights or warrants referred with respect to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. Spin-Offs, then the Conversion Rate will be adjusted based on the following formula: CR1=CR0 x SP0 SP0-FMV where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such distribution; CR’ distribution CR1 = the Conversion Rate in effect on the immediately after such Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares the Common Stock over the 10 consecutive Trading Trading-Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and distribution FMV = the Fair Market Value (as determined by the Company’s Board of Directors of the CompanyDirectors) on the Ex-Dividend Date for such distribution of the shares of Capital Stockcapital stock, evidences of indebtedness, assets or assets, including securities, so distributed, expressed as an amount per Ordinary Shareproperty distributed with respect to each outstanding share of Common Stock on the Record Date for such distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date Business Day following the date fixed for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu determination of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders stockholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(dclause (c) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of Common Stock in shares of Capital Stock capital stock of any class or series, or similar Equity Interestequity interest, in of or relating to a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding effective date of such Spin-Off will be increased based on the Ex-Dividend Date for such distribution; CR’ following formula: CR1=CR0 x FMV0+MP0 MP0 where, CR0 = the Conversion Rate in effect immediately prior to 5:00 p.m., New York City time, on the Exeffective date of the Spin-Dividend Date for such distribution; Off CR1 = the Conversion Rate in effect immediately after the effective date of the Spin-Off FMV0 = the average of the Last Reported Sale Prices of the Capital Stock capital stock or similar Equity Interests equity interest distributed to holders of Ordinary Shares Common Stock applicable to one share of Ordinary Shares during Common Stock over the first 10 consecutive Trading Trading-Day period commencing onfrom, and including, the effective date of the Spin-Off; and Off MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during Common Stock over the first 10 consecutive Trading Trading-Day period commencing onfrom, and including, the effective date of the Spin-Off. Such adjustment shall become occur on the tenth Trading Day from, and including, the effective immediately date of the Spin-Off and shall be applied on a retroactive basis from, and including, the effective date of the Spin-Off; provided that in respect of any conversion occurring prior to 9:00 a.m.the effective date of the Spin-Off with respect to which the Settlement Date would occur during the 10 Trading Days from, New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or madeand including, the Conversion Rate effective date of any Spin-Off, references with respect to the Spin-Off to the 10 consecutive Trading-Day period shall be readjusteddeemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the Settlement Date in determining the applicable Conversion Rate; provided further, that in respect of any conversion occurring prior to the effective as date of the Spin-Off with respect to which the Settlement Date would occur during the three Trading Days from, and including, the effective date of such Spin-Off, references to the Company publicly announces not to make 10 consecutive Trading-Day period shall be deemed replaced with a three consecutive Trading-Day period with such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversionbeing applied on a retroactive basis from, delivery and including, the effective date of the related conversion consideration will be delayed Spin-Off.
(i) If any regular, quarterly cash dividend or distribution made to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes holders of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any Common Stock is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence in excess of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the $0.03 per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company“Initial Dividend Threshold”), the Conversion Rate will be adjusted based on the following formula: CR1=CR0 x SP0 SP0-C where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the Ex-Dividend Date for such dividend or distribution CR1 = the Conversion Rate in effect immediately after the Ex-Dividend Date for such dividend or distribution SP0 = the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distributiondistribution C = the amount in cash per share the Company distributes to holders of Common Stock in excess of the Initial Dividend Threshold. The Initial Dividend Threshold is subject to adjustment in a manner inversely proportional to adjustments to the Conversion Rate; CR’ provided, that no adjustment will be made to the Initial Dividend Threshold for any adjustment made to the Conversion Rate under this Section 6.03(d)(i).
(ii) If the Company pays any cash dividend or distribution that is not a regular, quarterly cash dividend or distribution to holders of all or substantially all of the Common Stock, the Conversion Rate will be adjusted based on the following formula: CR1=CR0 x SP0 SP0-C where, CR0 = the Conversion Rate in effect on immediately prior to the Ex-Dividend Date for such dividend or distribution; distribution CR1 = the Conversion Rate in effect immediately after the Ex-Dividend Date for such dividend or distribution SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, Company’s Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and distribution C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes distributed to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declaredCommon Stock.
(fe) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to makes a payment in respect of a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary SharesCommon Stock, to the extent that the Fair Market Value (as determined below) of the cash and value of any other consideration included in the payment per Ordinary Share, share of Common Stock exceeds the Last reported Reported Sale Price of Ordinary Shares the Common Stock on the Trading Day immediately after next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (such last date, the “Expiration DateTime”), as it may be amended, the Conversion Rate will be adjusted increased based on the following formula: CR1=CR0 x AC+(SP1xOS1) OS0xSP1 where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Expiration Date; CR’ effective date of the adjustment CR1 = the Conversion Rate in effect on immediately after the Trading Day immediately following effective date of the Expiration Date; adjustment AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and any other consideration (as determined by the Company’s Board of Directors) paid or payable for the Ordinary Shares validly tendered shares accepted for purchase or exchanged and not withdrawn as of the Expiration Date; exchange in such tender or exchange offer OS0 = the number of Ordinary Shares shares of Common Stock outstanding immediately before prior to the last time tenders or exchanges may be made pursuant to date such tender or exchange offer expires OS1 = the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (the “Expiration Time”) (prior to after giving effect to the reduction of shares accepted for purchase or exchange in such tender or exchange offer); OS’ ) SP1 = the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading-Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires. Such adjustment will occur on the tenth Trading Day from, and including, the Trading Day next succeeding the date such tender or exchange offer expires and shall be applied on a retroactive basis from, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that in respect of any conversion occurring prior to the date such tender or exchange offer expires with respect to which the Settlement Date would occur during the 10 Trading Days from, and including, the Trading Day next succeeding the date such tender or exchange offer expires, references with respect to the tender or exchange offer to the 10 consecutive Trading-Day period shall be deemed replaced with such lesser number of Ordinary Shares Trading Days as have elapsed between the Trading Day next succeeding the date such tender or exchange offer expires and the Settlement Date in determining the applicable Conversion Rate. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made.
(f) The Company may (but is not required to) increase the Conversion Rate to avoid or diminish income tax to holders of Common Stock or rights to purchase Common Stock in connection with a dividend or distribution of shares (or rights to acquire shares) or any similar event treated as such for income tax purposes.
(g) To the extent permitted by applicable law and the rules of any stock exchange or market upon which the Common Stock is listed or admitted for trading, the Company may increase the Conversion Rate by any amount for a period of at least 20 days if the Company’s Board of Directors determines that such increase would be in the best interest of the Company, which determination shall be conclusive.
(h) Notwithstanding the foregoing provisions of this Section 6.03, the applicable Conversion Rate need not be adjusted:
(i) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the securities of the Company and the investment of additional optional amounts in shares of Common Stock under any plan;
(ii) upon the issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Company or any of its Subsidiaries;
(iii) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security not described in clause (ii) above and outstanding immediately as of the Issue Date;
(iv) for a change in the par value of the Common Stock; or
(v) for accrued and unpaid Interest (including any Additional Interest).
(i) All calculations under this Section 6.03 shall be made by the Company and shall be made to the nearest cent or to the nearest one-ten thousandth ( 1/10,000) of a share, as the case may be.
(j) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officers’ Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the Expiration Time (facts requiring such adjustment. Unless and until a Trust Officer of the Trustee shall have received such Officers’ Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has knowledge is still in effect. Promptly after giving effect solely delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which such adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Rate to the Holder of each Note at such tendeHolder’s last address appearing on the Security Register. Failure to deliver such
Appears in 1 contract
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company as follows:
(a) If the Company issues Ordinary Shares to all or substantially all holders shares of Ordinary Shares Common Stock as a dividend or distributiondistribution on shares of the Common Stock, or effects a share split or share combination, the Conversion Rate will be adjusted based on the following formula: OS' CR' = CR(0) x ----- OS(0) where, CR0 CR(0) = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for prior to such dividend or distribution; event CR’ ' = the Conversion Rate in effect on the Ex-Dividend Date for immediately after such dividend or distribution; OS0 event OS(0) = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for prior to such dividend or distribution; and event OS’ ' = the number of Ordinary Shares that would be shares of Common Stock outstanding immediately after, and solely as a result of, after such dividend or distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such dividend or distribution. If any dividend or distribution of the type described in this Section 12.03(aevent.
(a) is declared but not so paid or made, or the outstanding shares of Common Stock are not subdivided or combined, as the case may be, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces Board of Directors determines not to make pay such dividend divided or distribution, or subdivide or combine the outstanding shares of Common Stock, as the case may be, to the Conversion Rate that would then be in effect if such dividend or distribution distribution, or subdivision or combination, had not been declared.
(b) If the Company effects a subdivision or combination of Ordinary Shares, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares its Common Stock any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 60 calendar days after the date to subscribe for or purchase shares of the announcement for such issuance, Ordinary Shares Common Stock at an aggregate a price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during Common Stock for the 10 consecutive Trading Day period ending on the Trading Business Day immediately preceding the date of announcement of the issuance of such issuance was first publicly announcedrights, then the Conversion Rate will be adjusted based on the following formula: OS(0) + X CR' = CR(0) x --------- OS(0) + Y where, CR0 CR(0) = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for prior to such issuance; event CR’ ' = the Conversion Rate in effect on the Ex-Dividend Date for immediately after such issuance; OS0 event OS(0) = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for prior to such issuance; Y event X = the total number of Ordinary Shares shares of Common Stock issuable pursuant to such rights or warrants; and Z Y = the number of Ordinary Shares shares of Common Stock equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the Common Stock over the 10 consecutive Trading Day period ending on the Trading Business Day immediately preceding the date of announcement of the issuance of such rights. Such adjustment shall be successively made whenever any such rights or warrants are issued and shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the date fixed for determination of Holders entitled to receive such rights or warrants. The Company will not issue any such rights or warrants in respect of any shares of Common Stock held in treasury by the Company. To the extent that shares of Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance was first publicly announcedof such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. For purposes If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such date fixed for the determination of this Section 12.03(c), in stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable such Last Reported Sale PricesPrice, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distributionDirectors.
(dc) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, assets or property of the Company to all or substantially all the holders of the Ordinary SharesCommon Stock, excluding:
(i) any dividends or distributions referred to in Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(dclause (a) below or (to the extent and as specified therein)b) above; and
(viii) dividends or distributions referred to paid exclusively in Section 12.03(e) below. cash; then the Conversion Rate will be adjusted based on the following formula: SP(0) CR' = CR(0) x ----------- SP(0) - FMV where, CR0 CR(0) = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to such distribution CR' = the Conversion Rate in effect immediately after such distribution SP(0) = the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Business Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and distribution FMV = the Fair Market Value (as determined by the Board of Directors of the CompanyDirectors) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, assets or assets, including securities, so distributed, expressed as an amount per Ordinary Shareproperty distributed with respect to each outstanding share of Common Stock on the Record Date for such distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Business Day following the Record Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(dclause (c) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of Common Stock or shares of Capital Stock of any class or series, or similar Equity Interestequity interest, in of or relating to a Subsidiary or other business unit (a “Spin"SPIN-Off”OFF"), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at before 5:00 p.m., New York City time, on the tenth Trading Day immediately preceding following, and including, the Ex-Dividend Date effective date for such distribution; Spin-Off will be increased based on the following formula: FMV(0) + MP(0) CR’ ' = CR(0) x -------------- MP(0) where, CR(0) = the Conversion Rate in effect on immediately prior to such distribution CR' = the Ex-Dividend Date for Conversion Rate in effect immediately after such distribution; FMV0 distribution FMV(0) = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests equity interest distributed to holders of Ordinary Shares Common Stock applicable to one share of Ordinary Shares during Common Stock over the first 10 consecutive Trading Day period commencing onafter the effective date of the Spin-Off MP(0) = the average of the Last Reported Sale Prices of Common Stock over the first 10 consecutive Trading Day period after the effective date of the Spin-Off. Such adjustment shall occur on the tenth Trading Day from, and including, the effective date of the Spin-Off; and MP0 = .
(d) If the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If Company pays any such cash dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company)Common Stock, the Conversion Rate will be adjusted based on the following formula: SP(0) CR' = CR(0) x --------- SP(0) - C where, CR0 CR(0) = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the Record Date for such distribution CR' = the Conversion Rate in effect immediately after the Record Date for such distribution SP(0) = the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and distribution C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An Common Stock Such adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m.after 5:00 p.m., New York City time, on the Ex-Dividend Record Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any ; provided that if such dividend or distribution described in this Section 12.03(d) is declared but not so paid or made, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(fe) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to make a payment in respect of a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary SharesCommon Stock, to the extent that the Fair Market Value (as determined below) of the cash and value of any other consideration included in the payment per Ordinary Share, share of Common Stock exceeds the Last reported Reported Sale Price of Ordinary Shares the Common Stock on the Trading Day immediately after next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (such last date, the “Expiration Date”"EXPIRATION TIME"), as it may be amended, the Conversion Rate will be adjusted increased based on the following formula: AC + (SP' x OS') CR' = CR(0) x ---------------- OS(0) x SP' where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ CR(0) = the Conversion Rate in effect on the Trading Day immediately following date such tender or exchange offer expires CR' = the Expiration Date; Conversion Rate in effect on the day next succeeding the date such tender or exchange offer expires AC = the Fair Market Value aggregate value of all cash and any other consideration (as determined by the Board of Directors of the CompanyDirectors) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to shares purchased in such tender or exchange offer (OS(0) = the “Expiration Time”) (number of shares of Common Stock outstanding immediately prior to giving effect the date such tender or exchange offer expires OS' = the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires SP' = the average of the Last Reported Sale Prices of Common Stock over the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made.
(f) [reserved]
(g) Notwithstanding the foregoing provisions of this Section 12.02, no adjustment shall be made thereunder, nor shall an adjustment be made to the ability of a Holder to convert, for any distribution described therein if the Holder will otherwise participate in the distribution without conversion of such Holder's Securities.
(h) The Company may (but is not required to) make such increases in the Conversion Rate, in addition to those required by clauses (a) through (e) of this Section 12.02 as the Board of Directors considers to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock in connection with a dividend or distribution of shares (or rights to acquire shares) or any similar event treated as such for income tax purposes.
(i) To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of at least 20 Business Days if the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive.
(j) Notwithstanding any provision herein to the contrary, no adjustment to the Conversion Rate need be made:
(i) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in shares of Common Stock under any plan;
(ii) upon the issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Company or any of its Subsidiaries;
(iii) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security not described in clause (ii) above and outstanding as of the Issue Date;
(iv) for a change in the par value of the Common Stock; or
(v) for accrued and unpaid Interest (including any Additional Interest); OS’ = . To the number extent the Securities become convertible into cash, assets or property (other than Capital Stock of Ordinary Shares outstanding the Company or securities to which Section 12.03 applies), no adjustment shall be made thereafter as to the cash, assets or property. Interest shall not accrue on such cash, assets or property.
(k) All calculations under this Section 12.02 shall be made by the Company and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of a share, as the case may be. Except as described above in this Section 12.02, the Company will not adjust the Conversion Rate.
(l) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officers' Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until a Trust Officer of the Trustee shall have received such Officers' Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Rate to the Holder of each Security at such Holder's last address appearing on the Securities Register provided for in Section 2.05 of this Indenture within 20 Business Days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
(m) Any case in which this Section 12.02 provides that an adjustment shall become effective immediately after (i) a Record Date for a dividend or distribution described in Section 12.02(a), Section 12.02(c) or Section 12.02(d), (ii) the date fixed for the determination of a share split or combination pursuant to Section 12.02(a), (iii) the date fixed for the determination of Holders entitled to receive rights or warrants pursuant to 12.02(b) or (iv) the Expiration Time for any tender or exchange offer pursuant to Section 12.02(e), (each a "DETERMINATION DATE"), the Company may elect to defer until the occurrence of the applicable Adjustment Event (as hereinafter defined) (x) issuing to the Holder of any Security converted after giving effect solely to such tendeDetermination
Appears in 1 contract
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company as follows:
(a) If In case the Company issues Ordinary Shares to all shall (i) pay a dividend, or substantially all holders of Ordinary Shares as make a dividend or distribution, the Conversion Rate will be adjusted based in shares of Common Stock or other Capital Stock, on the following formula: whereCommon Stock; (ii) subdivide its outstanding Common Stock into a greater number of shares; or (iii) combine its outstanding Common Stock into a smaller number of shares, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior thereto shall be adjusted so that the Trading Day immediately preceding the Ex-Dividend Date holder of any Note thereafter surrendered for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; OS0 = conversion shall be entitled to receive the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on shares of Common Stock which such holder would have owned or have been entitled to receive after the Trading Day happening of any of the events described above had such Note been converted immediately preceding prior to the Ex-Dividend Date for happening of such dividend or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distributionevent. Such An adjustment made pursuant to this Section 3.08(a) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Common Stock Record Date for such in the case of a dividend or distributiondistribution and shall become effective immediately after the effective date in the case of subdivision, combination or reclassification. If any dividend or distribution of the type described in this Section 12.03(aclause (i) above is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared.
(b) If In case the Company effects a subdivision or combination of Ordinary Shares, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares any issue rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) all holders of its Common Stock entitling them to purchase, (for a period of not more than 45 calendar expiring within 60 days after the date fixed for determination of the announcement stockholders entitled to receive such rights or warrants) to subscribe for such issuance, Ordinary Shares or purchase Common Stock at an aggregate a price per share less than the average Sale Price per share of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending Common Stock on the Trading Day immediately day preceding the date of announcement of the Common Stock Record Date for the determination of stockholders entitled to receive such issuance was first publicly announcedrights or warrants, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior thereto shall be adjusted so that the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = same shall equal the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to such rights or warrants; and Z = the number of Ordinary Shares equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced. For purposes of this Section 12.03(c), in determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable for such Ordinary Shares, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution.
(d) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
(i) any dividends or distributions referred to in Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value (as determined by the Board of Directors of the Company) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of shares of Capital Stock of any class or series, or similar Equity Interest, in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then multiplying the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; issuance of such rights or warrants by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on the date of issuance of such rights or warrants plus the number of additional shares of Common Stock offered for subscription or purchase, and MP0 = of which the average denominator shall be the number of shares of Common Stock outstanding on the date of issuance of such rights or warrants plus the number of shares which the aggregate offering price of the Last Reported total number of shares so offered would purchase at such Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-OffPrice. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If successively whenever any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchaseissued, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, after the opening of business on the Ex-Dividend day following the Common Stock Record Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu determination of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders stockholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(f) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”) (prior to giving effect to such tender or exchange offer); OS’ = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tenderights or
Appears in 1 contract
Sources: Indenture (Lear Corp /De/)
Adjustments to Conversion Rate. The If the number of Ordinary Shares represented by each ADS is changed, after the date of this Note, for any reason other than one or more of the events described in this Section 5.3, the Company shall make an appropriate adjustment to the Conversion Rate such that the number of Ordinary Shares represented by the ADSs upon which conversion of the Note is based remains the same. In addition, the Conversion Rate shall be adjusted from time to time by the Company as follows:
(a) If In case the Company issues shall, at any time or from time to time while the Note is outstanding, pay a dividend in Ordinary Shares (directly or in the form of ADSs) or make a distribution in Ordinary Shares to all or substantially all holders of Ordinary Shares as a dividend or distributionShares, then the Conversion Rate will shall be adjusted based on the following formula: where, 14 ny-2522610.14A OS1 CR1 = CR0 × OS 0 where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such dividend or distribution; CR’ CR1 = the Conversion Rate in effect on the Exex-Dividend Date dividend date for such dividend or distribution; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such dividend or distribution; and OS’ OS1 = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distribution. Such Any adjustment made pursuant to this Section 5.3(a) shall become effective immediately prior to 9:00 a.m., New York City time, on the Exex-Dividend Date dividend date for such dividend or distribution. If any dividend or distribution that is the subject of the type described in this Section 12.03(a5.3(a) is declared but not so paid or made, the Conversion Rate shall again be adjustedimmediately readjusted, effective as of the date the Board of Directors of the Company (the “Board of Directors”) publicly announces its decision not to pay or make such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. For purposes of this Section 5.3(a), the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the trading day immediately preceding the ex-dividend date for such dividend or distribution shall not include Ordinary Shares held in treasury, if any. The Company will not pay any dividend or make any distribution on Ordinary Shares held in treasury, if any.
(b) If In case outstanding Ordinary Shares (directly or in the Company effects form of ADSs) shall be subdivided or split into a subdivision or combination greater number of Ordinary SharesShares or combined or reverse split into a smaller number of Ordinary Shares (in each case, other than in connection with a transaction to which Section 5.4 applies), the Conversion Rate will shall be adjusted based on the following formula: where, OS1 CR1 = CR0 × OS 0 where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the effective date of such subdivision or combination; CR’ CR1 = the Conversion Rate in effect on the effective date of such subdivision or combination; ny-2522610.14A OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the effective date of such subdivision or combination; and OS’ OS1 = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such Any adjustment made pursuant to this Section 5.3(b) shall become effective immediately prior to 9:00 a.m., New York City time, on the effective date on which of such split subdivision or combination becomes effectivecombination.
(c) If In case the Company issues shall issue rights (other than rights issued pursuant to a shareholders’ rights plan or a dividend or distribution on Ordinary Shares in Ordinary Shares as set forth in (a) above) or warrants to all or substantially all the holders of its Ordinary Shares any rights (whether direct or warrants (in the form of ADSs), other than pursuant an issuance in connection with a transaction to any rights plan described in which Section 12.03(d)(iii) below) 5.4 applies, entitling them to purchase, for a period of not more than 45 expiring within forty-five (45) calendar days after of the date of the announcement for such issuance, Ordinary Shares (directly or in the form of ADSs) at an aggregate a price per share Ordinary Share less than the average of the Last Reported Closing Sale Prices of the ADSs divided by the number of Ordinary Shares then represented by each ADS during the 10 ten (10) consecutive Trading Day trading day period ending on the Trading Day trading day immediately preceding the ex-dividend date such issuance was first publicly announcedfor the distribution, then the Conversion Rate will shall be adjusted based on the following formula: where, OS0 + X CR1 = CR0 × OS + Y where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such issuance; CR’ CR1 = the Conversion Rate in effect on the Exex-Dividend Date dividend date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to such rights or warrants; and Z = the number of Ordinary Shares equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced. For purposes of this Section 12.03(c), in determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable for such Ordinary Shares, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution.
(d) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
(i) any dividends or distributions referred to in Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value (as determined by the Board of Directors of the Company) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of shares of Capital Stock of any class or series, or similar Equity Interest, in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(f) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”) (prior to giving effect to such tender or exchange offer); OS’ = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tende
Appears in 1 contract
Sources: Senior Secured Convertible Note Purchase Agreement (Mynd.ai, Inc.)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted as described below, except that the Issuer shall not make any adjustments to the Conversion Rate if Holders participate (other than in the case of (x) a share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as holders of Common Stock and solely as a result of holding the Notes, in any of the transactions described below without having to convert their Notes as if they held a number of shares of Common Stock equal to the Conversion Rate, multiplied by the Company as follows:principal amount (expressed in thousands) of Notes held by such Holder.
(a) If the Company Issuer exclusively issues Ordinary Shares to all or substantially all holders shares of Ordinary Shares Common Stock as a dividend or distributiondistribution on shares of the Common Stock, or if the Issuer effects a share split or share combination, the Conversion Rate will shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the open of business on the Trading Day immediately preceding the Ex-Dividend Date for of such dividend or distribution, or immediately prior to the open of business on the effective date of such share split or share combination, as applicable; CR’ CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or effective date, as applicable; OS0 = the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex- Dividend Date or effective date (before giving effect to any such dividend, distribution, share split or share combination), as applicable; and OS1 = the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination, as applicable. Any adjustment made under this Section 11.5(a) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; OS0 = , or immediately after the number open of Ordinary Shares outstanding at 5:00 p.m., New York City time, business on the Trading Day immediately preceding the Ex-Dividend Date effective date for such dividend share split or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately aftershare combination, and solely as a result of, such dividend or distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such dividend or distributionapplicable. If any dividend or distribution of the type described in this Section 12.03(a11.5(a) is declared but not so paid or made, the Conversion Rate shall again be adjustedimmediately readjusted, effective as of the date the Company publicly announces Board of Directors of the Issuer or a committee thereof determines not to make pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company effects Issuer distributes to all or substantially all holders of Common Stock any rights, options or warrants (other than pursuant to a subdivision stockholder rights plan) entitling them, for a period of not more than 60 calendar days after the announcement date of such distribution, to subscribe for or combination purchase shares of Ordinary Sharesthe Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such distribution, the Conversion Rate will shall be adjusted increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the open of business on the Trading Day immediately preceding the effective date of Ex-Dividend Date for such subdivision or combinationdistribution; CR’ CR1 = the Conversion Rate in effect immediately after the open of business on the effective date of such subdivision or combinationEx-Dividend Date; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m.immediately prior to the open of business on such Ex- Dividend Date; X = the total number of shares of Common Stock distributable pursuant to such rights, New York City time, on the Trading Day immediately preceding the effective date of such subdivision options or combinationwarrants; and OS’ Y = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such adjustment shall become effective immediately prior shares of Common Stock equal to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than payable to exercise such rights, options or warrants, divided by the average of the Last Reported Sale Prices of the Ordinary Shares during Common Stock over the 10 consecutive Trading Day period ending on on, and including, the Trading Day immediately preceding the date of announcement of the distribution of such issuance was first publicly announcedrights, then options or warrants. Any increase made under this Section 11.5(b) shall be made successively whenever any such rights, options or warrants are distributed and shall become effective immediately after the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect open of business on the Ex-Dividend Date for such issuance; OS0 = distribution. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the distribution of such rights, options or warrants been made on the basis of delivery of only the number of Ordinary Shares outstanding shares of Common Stock actually delivered. If such rights, options or warrants are not so distributed, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such Ex- Dividend Date for such distribution had not occurred. For the purpose of this Section 11.5(b), in determining whether any rights, options or warrants entitle holders of Common Stock to subscribe for or purchase shares of Common Stock at 5:00 p.m.a price per share that is less than the average of the last reported sales prices of the Common Stock for the 10 consecutive Trading Day period ending on, New York City timeand including, on the Trading Day immediately preceding the Ex-Dividend Date for announcement of the distribution of such issuance; Y = the total number of Ordinary Shares issuable pursuant to such rights rights, options or warrants; , and Z = the number of Ordinary Shares equal to the quotient of (x) in determining the aggregate price payable to exercise such rights rights, options or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced. For purposes of this Section 12.03(c), in determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable for such Ordinary Shareswarrants, there shall be taken into account any consideration received by the Company Issuer for such rights rights, options or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described Issuer in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distributiongood faith.
(dc) If the Company Issuer distributes shares of its Capital Stock, evidences of its indebtedness indebtedness, other assets or property of the Issuer or rights, options or warrants to acquire its Capital Stock or other assets, including securities, of the Company securities to all or substantially all the holders of the Ordinary SharesCommon Stock, excluding:
(i1) any dividends dividends, distributions or distributions referred issuances as to in which an adjustment was effected pursuant to Section 12.03(a11.5(a) or Section 11.5(b) above;
(ii2) shares delivered except as otherwise described below, rights issued pursuant to any stockholder rights plan of the Issuer then in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) aboveeffect;
(iii3) rights and warrants referred to distributions of Reference Property issued in exchange for, or upon conversion of, the Common Stock as described in Section 12.03(c) above11.8;
(iv4) dividends or distributions paid exclusively in cash as to which the provisions set forth in Section 11.5(d) below shall apply; and
(5) Spin-Offs as to which the provisions set forth below in this Section 12.03(d11.5(c) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will shall be adjusted increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m.immediately prior to the open of business on the Ex-Dividend Date for such issuance or distribution, New York City timeas applicable; CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Price of the Common Stock over the 10 consecutive Trading Day period ending on, on and including, the Trading Day immediately preceding the Ex-Dividend Date for such issuance or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution, as applicable; and FMV = the Fair Market Value fair market value (as determined by the Board of Directors of the CompanyIssuer in good faith) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, or assets, including securitiesproperty, so rights, options or warrants issued or distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior applicable, with respect to 9:00 a.m., New York City time, each outstanding share of the Common Stock on the Ex-Dividend Date for the applicable such issuance or distribution. Any increase made under the portion of this Section 11.5(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such issuance or distribution, as applicable. If such distribution is not so paid or made, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d)foregoing increase, each Holder shall receive, in respect of each $1,000 principal amount of Notes shall be entitled to receive held by such Holder, at the same time and upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversionthe same terms as holders of Common Stock, the amount and kind and amount of assets (including cash), shares of the Issuer’s Capital Stock, evidences of indebtedness, securities other assets or property or rights, options or warrants to acquire the Issuer’s Capital Stock or options to purchase the Company’s securities, as applicable, other securities that such Holder would have received if such Holder had converted such Notes immediately prior owned a number of shares of Common Stock equal to the record date Conversion Rate in effect on the Ex-Dividend Date for determining the shareholders entitled to receive such issuance or distribution, as applicable. With respect to an adjustment pursuant to this Section 12.03(d11.5(c) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists Common Stock of shares of Capital Stock of any class or series, or similar Equity InterestInterests, in of or relating to a Subsidiary or other business unit (a “Spin-Off”)of the Issuer, that are, or, when issued, will be, traded listed or listed admitted for trading on the Nasdaq Stock Market, the New York Stock Exchange or any other a U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding end of the Ex-Dividend Date for such distributionValuation Period (as defined below); CR’ CR1 = the Conversion Rate in effect on immediately after the Ex-Dividend Date for such distributionend of the Valuation Period; FMV0 FMV = the average of the Last Reported Sale Sales Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares the Common Stock applicable to one share of Ordinary Shares during the Common Stock (determined by reference to the definition of Last Reported Sales Prices as if references therein to the Common Stock were to such Capital Stock or similar Equity Interests) over the first 10 consecutive Trading Day period commencing onafter, and including, the effective date Ex-Dividend Date of the Spin-OffOff (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Sales Prices of Ordinary Shares the Common Stock over the Valuation Period. The increase to the Conversion Rate under the preceding paragraph shall occur at the close of business on the last Trading Day of the Valuation Period; provided that if the relevant Conversion Date occurs during the 10 consecutive Valuation Period, the reference to “10” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Day period commencing onDays as have elapsed from, and including, the effective date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distributionSpin-Off to, but excluding, such Conversion Date in determining the Conversion Rate. If any such dividend or distribution described in this Section 12.03(d) that constitutes a Spin-Off is declared but not so paid or made, the Conversion Rate shall be readjustedimmediately decreased, effective as of the date the Company publicly announces Board of Directors of the Issuer or a committee thereof determines not to pay or make such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared or announced.
(d) If the Issuer makes any cash dividend or distribution to all or substantially all holders of Common Stock, the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution; CR1 = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; SP0 = the Last Reported Sales Price of the Common Stock on the Trading Day immediately preceding the Ex- Dividend Date for such dividend or distribution; and C = the amount in cash per share of Common Stock the Issuer distributes to all or substantially all holders of the Common Stock. Any increase made under this Section 11.5(d) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of Directors of the Issuer or a committee thereof determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02foregoing, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e)foregoing increase, each Holder shall receive, for each $1,000 principal amount of Notes shall be entitled to receive it holds, at the same time and upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversionthe same terms as holders of shares of the Common Stock, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior owned a number of shares of the Common Stock equal to the record date Conversion Rate in effect on the Ex-Dividend Date for determining the shareholders entitled to receive such cash dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(fe) If the Company Issuer or any of its Subsidiaries purchases Ordinary Shares pursuant to make a payment in respect of a tender offer or exchange offer made by for the Company or any of its Subsidiaries for all or any portion of the Ordinary Shares, Common Stock that is subject to the extent that then applicable tender offer rules under the Fair Market Value Exchange Act (as determined belowother than any odd lot tender offer pursuant to Rule 13e-4(h)(5) of under the Exchange Act), and the cash and value of any other consideration included in the payment per Ordinary Share, share of Common Stock exceeds the average of the Last reported Sale Price Reported Sales Prices of Ordinary Shares on the Common Stock over the 10-consecutive Trading Day period commencing on, and including, the Trading Day immediately after next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amendedoffer, the Conversion Rate will shall be adjusted increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Expiration Date10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires; CR’ CR1 = the Conversion Rate in effect immediately after the close of business on the 10th Trading Day immediately following, and including, the Trading Day immediately following next succeeding the Expiration Datedate such tender or exchange offer expires; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and any other consideration (as determined by the Issuer in good faith) paid or payable for the Ordinary Shares validly tendered shares of Common Stock purchased in such tender or exchanged and not withdrawn as of the Expiration Dateexchange offer; OS0 = the number of Ordinary Shares shares of Common Stock outstanding immediately before prior to the last time tenders or exchanges may be made pursuant to date such tender or exchange offer (the “Expiration Time”) expires (prior to giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); OS’ OS1 = the number of Ordinary Shares shares of Common Stock outstanding immediately after the Expiration Time date such tender or exchange offer expires (after giving effect solely to the purchase of all shares of Common Stock accepted for purchase or exchange in such tendetender or exchange offer); and SP1 = the average of the Last Reported Sales Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the date such tender or exchange offer expires. The increase to the Conversion Rate under the preceding paragraph shall occur at the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that if the relevant Conversion Date occurs during the 10 Trading Days immediately following, and including, the Trading Day next succeeding the expiration date of any tender or exchange offer, references to “10” or “10th” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding such expiration date of such tender or exchange offer to, but excluding, such Conversion Date in determining the Conversion Rate. If the Issuer is obligated to purchase shares of Common Stock pursuant to any such tender or exchange offer described in this Section 11.5(e) but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made or had been made only in respect of the purchases that have been made.
(f) If the Issuer issues additional shares of its Common Stock for consideration at a price per share (before including any applicable underwriting discounts, fees, commissions or similar discounts paid by the Issuer in connection with such issuance) that is less than the average of the Last Reported Sales Prices of the Common Stock for the 10-consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of definitive agreement in connection
Appears in 1 contract
Sources: Indenture (Core Scientific, Inc./Tx)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company as follows:described below, except that the Company shall not make any adjustments to the Conversion Rate if Holders of the Notes participate (as a result of holding the Notes, and at the same time as holders of the Common Stock participate) in any of the transactions described in this Section 5.02 as if such Holders of the Notes held a number of shares of the Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holders, without having to convert their Notes.
(a) If the Company issues Ordinary Shares to all or substantially all holders shares of Ordinary Shares Common Stock as a dividend or distributiondistribution on shares of Common Stock, or if the Company effects a share split or share combination, the Conversion Rate will shall be adjusted based on the following formula: CR1 = CR0 x OS1 OS0 where, CR0 = the Conversion Rate conversion rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for of such dividend or distributiondistribution or the effective date of such share split or combination, as applicable; CR’ CR1 = the Conversion Rate conversion rate in effect on the immediately after such Ex-Dividend Date for such dividend or distributioneffective date, as applicable; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the prior to such Ex-Dividend Date for such dividend or distributioneffective date, as applicable; and OS’ OS1 = the number of Ordinary Shares that would be shares of Common Stock outstanding immediately afterprior to such Ex-Dividend Date or effective date, and solely as a result ofapplicable, after giving pro forma effect to such dividend dividend, distribution, share split or distributionshare combination. Such adjustment shall become effective immediately prior to after 9:00 a.m., New York City time, on the Ex-Dividend Business Day following the Record Date for such dividend or distribution, or the date fixed for determination for such share split or share combination. The Company shall not pay any dividend or make any distribution on shares of Common Stock held in treasury by the Company. If any dividend or distribution of the type described in this Section 12.03(a5.02(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company effects a subdivision or combination distributes to holders of Ordinary Shares, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares Common Stock any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date to subscribe for or purchase shares of the announcement for such issuance, Ordinary Shares Common Stock at an aggregate a price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during Common Stock for the 10 consecutive Trading Trading-Day period ending on the Trading Day immediately preceding the date of announcement of such issuance was first publicly announceddistribution, then the Conversion Rate will shall be adjusted based on the following formula: CR1 = CR0 x OS0 + X OS0 + Y where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior the Ex-Dividend Date for such issuancedistribution; CR’ CR1 = the Conversion Rate in effect on the immediately after such Ex-Dividend Date for such issuanceDate; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the after such Ex-Dividend Date for such issuanceDate; Y X = the total number of Ordinary Shares shares of Common Stock issuable pursuant to such rights or warrants; and Z Y = the number of Ordinary Shares shares of Common Stock equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during Common Stock over the 10 consecutive Trading Trading-Day period ending on the Trading Day immediately preceding the date of announcement of the distribution of such rights or warrants. Such adjustment shall be successively made whenever any such rights or warrants are issued and shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the date fixed for such determination. The Company shall not issue any such rights, options or warrants in respect of shares of Common Stock held in treasury by the Company. To the extent that shares of Common Stock are not delivered after the expiration of such rights or warrants, or such rights or warrants are not exercised prior to their expiration, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance was first publicly announcedof such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. For purposes If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such date fixed for the determination of this Section 12.03(c), in stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the such average of the applicable Last Reported Sale PricesPrice, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Company’s Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distributionDirectors.
(dc) If the Company distributes shares of Capital Stockits capital stock, evidences of its indebtedness or other assets, including securities, assets or property of the Company to holders of all or substantially all the holders of the Ordinary SharesCommon Stock, excluding:
(i) any dividends or distributions and rights or warrants referred to in Section 12.03(a5.02(a) or (b) above;
(ii) shares delivered dividends or distributions paid exclusively in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;cash; and
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth as described below in this Section 12.03(d5.02(c) shall apply;
(v) the rights or warrants referred with respect to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. Spin-Offs, then the Conversion Rate will shall be adjusted based on the following formula: CR1 = CR0 x ▇▇▇ ▇▇▇ – FMV where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such distribution; CR’ CR1 = the Conversion Rate in effect on the immediately after such Ex-Dividend Date for such distributionDate; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares Common Stock over the 10 consecutive Trading Trading-Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value (as determined by the Company’s Board of Directors of the CompanyDirectors) on the Ex-Dividend Date for such distribution of the shares of Capital Stockcapital stock, evidences of indebtedness, assets or assets, including securities, so distributed, expressed as an amount per Ordinary Shareproperty distributed with respect to each outstanding share of Common Stock on the Record Date for such distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date Business Day following the date fixed for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu determination of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders stockholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(dclause (c) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of Common Stock in shares of Capital Stock capital stock of any class or series, or similar Equity Interestequity interest, in of or relating to a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding effective date of such Spin-Off shall be increased based on the Ex-Dividend Date for such distribution; CR’ following formula: CR1 = CR0 x FMV0 + MP0 MP0 where, CR0 = the Conversion Rate in effect immediately prior to 5:00 p.m., New York City time, on the ExEffective Date of the Spin-Dividend Date for such distributionOff; CR1 = the Conversion Rate in effect immediately after the effective date of the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock capital stock or similar Equity Interests equity interest distributed to holders of Ordinary Shares Common Stock applicable to one share of Ordinary Shares during Common Stock over the first 10 consecutive Trading Trading-Day period commencing onfrom, and including, the effective date of the Spin-Spin- Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during Common Stock over the first 10 consecutive Trading Trading-Day period commencing onfrom, and including, the effective date of the Spin-Off. Such adjustment shall become occur on the tenth Trading Day from, and including, the effective immediately date of the Spin-Off and shall be applied on a retroactive basis from, and including, the effective date of the Spin-Off; provided, however, that in respect of any conversion occurring prior to 9:00 a.m.the effective date of the Spin-Off with respect to which the Settlement Date would occur during the 10 Trading Days from, New York City timeand including, on the Exeffective date of the Spin-Dividend Off, references with respect to the Spin-Off to the consecutive Trading-Day period shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the Settlement Date for such distribution. in determining the applicable Conversion Rate.
(i) If any such regular, quarterly cash dividend or distribution described made to the holders of all or substantially all of the Common Stock is in this Section 12.03(d) is declared but not paid or madeexcess of $0.18 per share (the “Initial Dividend Threshold”), the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: CR1 = CR0 x ▇▇▇ ▇▇▇ – C where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such dividend or distribution; CR’ CR1 = the Conversion Rate in effect on immediately after the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices Price of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that distributed by the Company pays as a dividend or otherwise distributes to holders of Ordinary SharesCommon Stock in excess of the Initial Dividend Threshold. An The Initial Dividend Threshold shall be adjusted at any time the Conversion Rate is adjusted in a manner inversely proportional to adjustments to the Conversion Rate; provided that no adjustment shall be made to the Initial Dividend Threshold for any adjustment made to the Conversion Rate made pursuant to under this Section 12.03(e5.02(d)(i).
(ii) If the Company pays any cash dividend or distribution that is not a regular, quarterly cash dividend or distribution to holders of all or substantially all of the Common Stock, the Conversion Rate shall become effective be adjusted based on the following formula: CR1 = CR0 x ▇▇▇ ▇▇▇ – C where, CR0 = the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, ; CR1 = the Conversion Rate shall be readjusted, effective as of in effect immediately after the date the Company publicly announces not to make Ex-Dividend Date for such dividend or distribution, to be ; SP0 = the Conversion Rate that would then be in effect if Last Reported Sale Price of Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution had not been declareddistribution; and C = the amount in cash per share distributed by the Company to holders of Common Stock.
(fe) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to makes a payment in respect of a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary SharesCommon Stock, to the extent that the Fair Market Value (as determined below) of the cash and value of any other consideration included in the payment per Ordinary Share, share of Common Stock exceeds the Last reported Reported Sale Price of Ordinary Shares the Common Stock on the Trading Day immediately after next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (such last date, the “Expiration DateTime”), as it may be amended, the Conversion Rate will shall be adjusted increased based on the following formula: CR1 = CR0 x AC + (SP1 x OS1) OS1 x SP1 where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Expiration Dateeffective date of the adjustment; CR’ CR1 = the Conversion Rate in effect on immediately after the Trading Day immediately following effective date of the Expiration Dateadjustment; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and any other consideration (as determined by the Company’s Board of Directors) paid or payable for the Ordinary Shares validly tendered shares accepted for purchase or exchanged and not withdrawn as of the Expiration Dateexchange in such tender or exchange offer; OS0 = the number of Ordinary Shares shares of Common Stock outstanding immediately before prior to the last time tenders or exchanges may be made pursuant to date such tender or exchange offer expires; OS1 = the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (the “Expiration Time”) (prior to after giving effect to the reduction of shares accepted for purchase or exchange in such tender or exchange offer); OS’ and SP1 = the average of the Last Reported Sale Prices of Common Stock over the 10 consecutive Trading-Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires. Such adjustment shall occur on the tenth Trading Day from, and including, the Trading Day next succeeding the date such tender or exchange offer expires and shall be applied on a retroactive basis from, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided, however, that in respect of any conversion occurring prior to the date such tender or exchange offer expires with respect to which the Settlement Date would occur during the 10 Trading Days from, and including, the Trading Day next succeeding the date such tender or exchange offer expires, references with respect to the tender or exchange offer to the 10 consecutive Trading Day period shall be deemed replaced with such lesser number of Ordinary Shares Trading Days as have elapsed between the Trading Day next succeeding the date such tender or exchange offer expires and the Settlement Date in determining the applicable Conversion Rate. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made. Except as stated herein, the Company shall not adjust the Conversion Rate for the issuance of shares of Common Stock or any securities convertible into or exchangeable for shares of Common Stock or the right to purchase shares of Common Stock or such convertible or exchangeable securities.
(f) The Company may (but is not required to) increase the Conversion Rate to avoid or diminish income tax to holders of Common Stock or rights to purchase Common Stock in connection with a dividend or distribution of shares (or rights to acquire shares) or any similar event treated as such for income tax purposes.
(g) To the extent permitted by applicable law and the rules of any stock exchange or market upon which the Common Stock is listed or admitted for trading, the Company may increase the Conversion Rate by any amount for a period of at least 20 days if the Company’s Board of Directors determines that such increase would be in the best interest of the Company, which determination shall be conclusive.
(h) Notwithstanding the foregoing provisions of this Section 5.02, the applicable Conversion Rate will not be adjusted:
(i) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the securities of the Company and the investment of additional optional amounts in shares of Common Stock under any plan;
(ii) upon the issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Company or any of its Subsidiaries;
(iii) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security not described in clause (ii) above and outstanding immediately as of the Issue Date;
(iv) for a change in the par value of the Common Stock; or
(v) for accrued and unpaid interest (including Additional Interest, if any).
(i) All calculations under this Section 5.02 shall be made by the Company and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of a share, as the case may be. The Company shall not be required to make an adjustment in the Conversion Rate unless the adjustment would require a change of at least 1% in the Conversion Rate; provided, however, that the Company shall carry forward any adjustments that are less than 1% of the Conversion Rate that the Company elects not to make and take them into account upon the earlier of (i) any conversion of Notes or (ii) such time as all adjustments that have not been made prior thereto would have the effect of adjusting the Conversion Rate by at least 1%. Except as provided in this Section 5.02 and Sections 5.03 and 5.04, the Company shall not adjust the Conversion Rate.
(j) Whenever the Conversion Rate is adjusted as provided in this Supplemental Indenture, the Company shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officers’ Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the Expiration Time (after giving effect solely to facts requiring such tendeadjustment. Unless and until a Responsible Officer of the Trustee shall have receive
Appears in 1 contract
Sources: Second Supplemental Indenture (Allegheny Technologies Inc)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company, as described below, except that the Company will not make any adjustments to the Conversion Rate if Holders of the Notes participate (as follows:a result of holding the Notes, and at the same time as holders of the Common Stock participate) in any of the transactions described in this Section 6.03 as if such Holders of the Notes held a number of shares of the Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holders, without having to convert their Notes.
(a) If the Company issues Ordinary Shares to all or substantially all holders shares of Ordinary Shares Common Stock as a dividend or distributiondistribution on shares of the Common Stock, or effects a share split or share combination, the Conversion Rate will be adjusted based on the following formula: CR1=CR0 x OS1 OS0 where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for of such dividend or distribution; CR’ , or the effective date of such share split or share combination, as applicable CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or effective date, as applicable OS0 = the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or effective date, as applicable OS1 = the number of shares of Common Stock outstanding immediately after giving pro forma effect to such dividend, distribution, share split or share combination Such adjustment shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; OS0 = , or immediately after the number open of Ordinary Shares outstanding at 5:00 p.m., New York City time, business on the Trading Day immediately preceding the Ex-Dividend Date effective date for such share split or share combination. The Company will not pay any dividend or distribution; and OS’ = make any distribution on shares of Common Stock held in treasury by the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such dividend or distributionCompany. If any dividend or distribution of the type described in this Section 12.03(a6.03(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company effects distributes to holders of all or substantially all the Common Stock any rights or warrants entitling them for a subdivision period of not more than 60 calendar days to subscribe for or combination purchase shares of Ordinary SharesCommon Stock at a price per share less than the average of the Daily VWAP of the Common Stock for the 10 consecutive Trading-Day period ending on the Trading Day immediately preceding the date of announcement of such distribution (excluding such date of announcement), the Conversion Rate will be adjusted based on the following formula: CR1=CR0 x OS0+X OS0+Y where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ distribution CR1 = the Conversion Rate in effect immediately after the open of business on the such Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the prior to such Ex-Dividend Date for such issuance; Y X = the total number of Ordinary Shares shares of Common Stock issuable pursuant to such rights or warrants; and Z warrants Y = the number of Ordinary Shares shares of Common Stock equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices Daily VWAP of Ordinary Shares during the Common Stock over the 10 consecutive Trading Trading-Day period ending on the Trading Day immediately preceding the date of announcement of the distribution of such rights or warrants (excluding such date of announcement) Such adjustment shall be successively made whenever any such rights or warrants are issued and shall become effective immediately after the open of business on the Ex-Dividend Date for such issuance. The Company shall not issue any such rights, options or warrants in respect of shares of Common Stock held in treasury by the Company. To the extent that shares of Common Stock are not delivered after the expiration of such rights or warrants, or such rights or warrants are not exercised prior to their expiration, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance was first publicly announcedhad not occurred. For purposes of this Section 12.03(c), in In determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Pricessuch Daily VWAP, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Company’s Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distributionDirectors.
(dc) If the Company distributes shares of Capital Stockits capital stock, evidences of its indebtedness or other assets, including securities, assets or property of the Company to holders of all or substantially all the holders of the Ordinary SharesCommon Stock, excluding:
(i) any dividends or distributions and rights or warrants referred to in Section 12.03(a6.03(a) or (b) above;
(ii) shares delivered dividends or distributions paid exclusively in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;cash; and
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth as described below in this Section 12.03(d6.03(c) shall apply;
(v) the rights or warrants referred with respect to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. Spin-Offs, then the Conversion Rate will be adjusted based on the following formula: CR1=CR0 x SP0 SP0-FMV where, CR0 = the Conversion Rate in effect at 5:00 p.m.immediately prior to the Ex-Dividend Date for such distribution CR1 = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date SP0 = the average of the Daily VWAP of the Common Stock over the 10 consecutive Trading-Day period ending on, New York City timeand including, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and distribution FMV = the Fair Market Value (as determined by the Company’s Board of Directors Directors) of the Company) shares of capital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Sharedistribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, after the open of business on the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(dclause (c) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of Common Stock in shares of Capital Stock capital stock of any class or series, or similar Equity Interestequity interest, in of or relating to a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding effective date of such Spin-Off will be increased based on the Ex-Dividend Date for such distribution; CR’ following formula: CR1=CR0 x FMV0+MP0 MP0 where, CR0 = the Conversion Rate in effect immediately prior to 5:00 p.m., New York City time, on the Exeffective date of the Spin-Dividend Date for such distribution; Off CR1 = the Conversion Rate in effect immediately after the effective date of the Spin-Off FMV0 = the average of the Last Reported Sale Prices Daily VWAP of the Capital Stock capital stock or similar Equity Interests equity interest distributed to holders of Ordinary Shares Common Stock applicable to one share of Ordinary Shares during Common Stock over the first 10 consecutive Trading Trading-Day period commencing onfrom, and including, the effective date of the Spin-Off; and Off MP0 = the average of the Last Reported Sale Prices Daily VWAP of Ordinary Shares during Common Stock over the first 10 consecutive Trading Trading-Day period commencing onfrom, and including, the effective date of the Spin-Off. Such adjustment shall become occur on the tenth Trading Day from, and including, the effective immediately date of the Spin-Off and shall be applied on a retroactive basis from, and including, the effective date of the Spin-Off; provided that in respect of any conversion occurring prior to 9:00 a.m.the effective date of the Spin-Off with respect to which the Settlement Date would occur during the 10 Trading Days from, New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or madeand including, the Conversion Rate effective date of any Spin-Off, references with respect to the Spin-Off to the 10 consecutive Trading-Day period shall be readjusteddeemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the Settlement Date in determining the applicable Conversion Rate; provided, further, that in respect of any conversion occurring prior to the effective as date of the Spin-Off with respect to which the Settlement Date would occur during the three Trading Days from, and including, the effective date of such Spin-Off, references to the Company publicly announces not to make 10 consecutive Trading-Day period shall be deemed replaced with a three consecutive Trading-Day period with such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate being applied on a retroactive basis from, and including, the effective date of the Spin-Off. In addition, if the effective date for the Spin-Off is required pursuant to this Section 12.03(d) during any settlement period less than 10 Trading Days prior to, and including, the end of the Cash Settlement Averaging Period in respect of Notes that have been tendered for any conversion, delivery references in the portion of this Section 6.03(c) related to Spin-Offs to 10 Trading Days shall be deemed replaced, for purposes of calculating the related conversion consideration will be delayed affected daily Conversion Rates in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the effective date for such Spin-Off to, and including, the last Trading Day of such Cash Settlement Averaging Period.
(d) If the Company makes any dividend or any other distribution of cash to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes holders of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof Common Stock, other than a regular quarterly dividend that does not exceed $0.55 per share, as subject to subscribe for or purchase shares of Capital Stock adjustment as provided below (either initially or under certain circumstancesthe “Dividend Threshold”), in which rights or warrantscase, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment immediately prior to the Conversion Rate will be required until the occurrence opening of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect business on the Ex-Dividend Date for such dividend or distribution; distribution the Conversion Rate will be increased based on the following formula: CR1=CR0 x SP0 - DTA SP0-C where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such dividend or distribution CR1 = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution SP0 = the average of the Last Reported Sale Prices Daily VWAP of the Ordinary Shares during Common Stock for each Trading Day in the 10 five consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and distribution C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary SharesCommon Stock. An DTA = the initial Dividend Threshold amount, provided that if the dividend is not a regular quarterly dividend, the Dividend Threshold will be zero In connection with any adjustment to the Conversion Rate made pursuant to based on this Section 12.03(e) shall 6.03(d), the Company must issue a press release for publication through Dow ▇▇▇▇▇ & Company, Inc., Bloomberg Business News, BusinessWire, or PR Newswire or a substantially equivalent financial news organization within five Business Days following the Record Date for such dividend or distribution (excluding such record date), announcing such an adjustment. Such increase to the Conversion Rate will become effective immediately prior to 9:00 a.m., New York City time, after the open of business on the Ex-Dividend Date for the applicable such dividend or distribution. If any dividend or distribution of the type described in this Section 6.03(d) is declared but not so paid or made, the Conversion Rate will again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. The Dividend Threshold will be adjusted, in a manner inversely proportional to adjustments to the Conversion Rate; provided that no adjustment will be made to the Dividend Threshold for any adjustment to the Conversion Rate under this Section 6.03(d). If an adjustment is required to be made as set forth in this Section 6.03(d) as a result of a distribution that is not a regular quarterly dividend, the Dividend Threshold amount will be deemed to be zero. Notwithstanding the foregoing, if at any time regular dividends are distributed other than on a quarterly basis, the Dividend Threshold amount shall be appropriately adjusted and shall apply to such regular dividends. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), or if the difference between “SP0” and “C” is less than $0.01, in lieu of the adjustment described in this Section 12.03(e)foregoing increase, each Holder of Notes a Note shall be entitled to receive upon conversionreceive, in addition to Ordinary Sharesrespect of each $1,000 principal amount thereof, and, if applicable, cash payable on conversionat the same time and upon the same terms as holders of shares of Common Stock, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior holder owned a number of shares of Common Stock equal to the record date Conversion Rate on the Record Date for determining the shareholders entitled to receive such cash dividend or distribution. If any such the Company makes a dividend or distribution described to all or substantially all holders of Common Stock that consists in this Section 12.03(d) the aggregate of both cash and shares of Common Stock that is declared but not paid or madedeductible for U.S. federal income tax purposes, the adjustment to the Conversion Rate shall be readjusteddetermined pursuant to this Section 6.03(d) only, effective with the value of Common Stock, as determined by the Company’s Board of the date the Company publicly announces not to make such dividend or distributionDirectors, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declaredconstituting “cash” for purposes hereof.
(fe) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to makes a payment in respect of a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary SharesCommon Stock, to the extent that the Fair Market Value (as determined below) of the cash and value of any other consideration included in the payment per Ordinary Share, share of Common Stock exceeds the Last reported Sale Price Daily VWAP of Ordinary Shares the Common Stock on the Trading Day immediately after next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (such last date, the “Expiration DateTime”), as it may be amended, the Conversion Rate will be adjusted increased based on the following formula: CR1=CR0 x AC+(SP1xOS1) OS0xSP1 where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Expiration Date; CR’ effective date of the adjustment CR1 = the Conversion Rate in effect on immediately after the Trading Day immediately following effective date of the Expiration Date; adjustment AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and any other consideration (as determined by the Company’s Board of Directors) paid or payable for the Ordinary Shares validly tendered shares accepted for purchase or exchanged and not withdrawn as of the Expiration Date; exchange in such tender or exchange offer OS0 = the number of Ordinary Shares shares of Common Stock outstanding immediately before prior to the last time tenders or exchanges may be made pursuant to date such tender or exchange offer expires OS1 = the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (the “Expiration Time”) (prior to after giving effect to the reduction of shares accepted for purchase or exchange in such tender or exchange offer); OS’ ) SP1 = the average of the Daily VWAP of the Common Stock over the 10 consecutive Trading-Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires. Such adjustment will occur on the tenth Trading Day from, and including, the Trading Day next succeeding the date such tender or exchange offer expires and shall be applied on a retroactive basis from, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that in respect of any conversion occurring prior to the date such tender or exchange offer expires with respect to which the Settlement Date would occur during the 10 Trading Days from, and including, the Trading Day next succeeding the date such tender or exchange offer expires, references with respect to the tender or exchange offer to the 10 consecutive Trading-Day period shall be deemed replaced with such lesser number of Ordinary Shares outstanding immediately after Trading Days as have elapsed between the Expiration Time (after giving effect solely Trading Day next succeeding the date such tender or exchange offer expires and the Settlement Date in determining the applicable Conversion Rate. If the Trading Day next succeeding the date such tender or exchange offer expires is less than 10 Trading Days prior to, and including, the end of the Cash Settlement Averaging Period in respect of any conversion, references in this Section 6.03(e) to 10 Trading Days shall be deemed replaced, for purposes of calculating the affected daily Conversion Rates in respect of that conversion, with such tendelesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the date such tender or exchange offer expires to, and including, the last Trading Day of such Cash Settlement Averaging Period. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then
Appears in 1 contract
Sources: Second Supplemental Indenture (Annaly Capital Management Inc)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company as follows:described below, except that the Company will not make any adjustments to the Conversion Rate if Holders of the Notes participate (as a result of holding the Notes, and at the same time as holders of the Common Stock participate) in any of the transactions described in this Section 6.03 as if such Holders of the Notes held a number of shares of the Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holders, without having to convert their Notes.
(a) If the Company issues Ordinary Shares to all or substantially all holders shares of Ordinary Shares Common Stock as a dividend or distributiondistribution on shares of the Common Stock, or effects a share split or share combination, the Conversion Rate will be adjusted based on the following formula: CR1=CR0 x OS1 OS0 where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for of such dividend or distribution; CR’ , or the effective date of such share split or share combination, as applicable CR1 = the Conversion Rate in effect on the immediately after such Ex-Dividend Date for such dividend or distribution; effective date, as applicable OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the prior to such Ex-Dividend Date for such dividend or distribution; and OS’ effective date, as applicable OS1 = the number of Ordinary Shares that would be shares of Common Stock outstanding immediately afterprior to such Ex-Dividend Date or effective date, and solely as a result ofapplicable, after giving pro forma effect to such dividend dividend, distribution, share split or distribution. share combination Such adjustment shall become effective immediately prior to after 9:00 a.m., New York City time, on the Ex-Dividend Business Day following the Record Date for such dividend or distribution, or the date fixed for determination for such share split or share combination. The Company will not pay any dividend or make any distribution on shares of Common Stock held in treasury by the Company. If any dividend or distribution of the type described in this Section 12.03(a6.03(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company effects distributes to holders of all or substantially all the Common Stock any rights or warrants entitling them for a subdivision period of not more than 60 calendar days to subscribe for or combination purchase shares of Ordinary SharesCommon Stock at a price per share less than the average of the Daily VWAP of the Common Stock for the 10 consecutive Trading-Day period ending on the Trading Day immediately preceding the date of announcement of such distribution (excluding such date of announcement), the Conversion Rate will be adjusted based on the following formula: CR1=CR0 x OS0+X OS0+Y where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ distribution CR1 = the Conversion Rate in effect on the immediately after such Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the after such Ex-Dividend Date for such issuance; Y X = the total number of Ordinary Shares shares of Common Stock issuable pursuant to such rights or warrants; and Z warrants Y = the number of Ordinary Shares shares of Common Stock equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices Daily VWAP of Ordinary Shares during the Common Stock over the 10 consecutive Trading Trading-Day period ending on the Trading Day immediately preceding the date of announcement of the distribution of such rights or warrants (excluding such date of announcement) Such adjustment shall be successively made whenever any such rights or warrants are issued and shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the date fixed for such determination. The Company shall not issue any such rights, options or warrants in respect of shares of Common Stock held in treasury by the Company. To the extent that shares of Common Stock are not delivered after the expiration of such rights or warrants, or such rights or warrants are not exercised prior to their expiration, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance was first publicly announcedof such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. For purposes If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such date fixed for the determination of this Section 12.03(c), in stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Pricessuch Daily VWAP, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Company’s Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distributionDirectors.
(dc) If the Company distributes shares of Capital Stockits capital stock, evidences of its indebtedness or other assets, including securities, assets or property of the Company to holders of all or substantially all the holders of the Ordinary SharesCommon Stock, excluding:
(i) any dividends or distributions and rights or warrants referred to in Section 12.03(a6.03(a) or (b) above;
(ii) shares delivered dividends or distributions paid exclusively in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;cash; and
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth as described below in this Section 12.03(d6.03(c) shall apply;
(v) the rights or warrants referred with respect to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. Spin-Offs, then the Conversion Rate will be adjusted based on the following formula: CR1=CR0 x SP0 SP0-FMV where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such distribution; CR’ distribution CR1 = the Conversion Rate in effect on the immediately after such Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices Daily VWAP of Ordinary Shares the Common Stock over the 10 consecutive Trading Trading-Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and distribution (excluding such Ex-Dividend Date) FMV = the Fair Market Value (as determined by the Company’s Board of Directors of the CompanyDirectors) on the Ex-Dividend Date for such distribution of the shares of Capital Stockcapital stock, evidences of indebtedness, assets or assets, including securities, so distributed, expressed as an amount per Ordinary Shareproperty distributed with respect to each outstanding share of Common Stock on the Record Date for such distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date Business Day following the date fixed for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu determination of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders stockholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(dclause (c) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of Common Stock in shares of Capital Stock capital stock of any class or series, or similar Equity Interestequity interest, in of or relating to a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding effective date of such Spin-Off will be increased based on the Ex-Dividend Date for such distribution; CR’ following formula: CR1=CR0 x FMV0+MP0 MP0 where, CR0 = the Conversion Rate in effect immediately prior to 5:00 p.m., New York City time, on the Exeffective date of the Spin-Dividend Date for such distribution; Off CR1 = the Conversion Rate in effect immediately after the effective date of the Spin-Off FMV0 = the average of the Last Reported Sale Prices Daily VWAP of the Capital Stock capital stock or similar Equity Interests equity interest distributed to holders of Ordinary Shares Common Stock applicable to one share of Ordinary Shares during Common Stock over the first 10 consecutive Trading Trading-Day period commencing onfrom, and including, the effective date of the Spin-Off; and Off MP0 = the average of the Last Reported Sale Prices Daily VWAP of Ordinary Shares during Common Stock over the first 10 consecutive Trading Trading-Day period commencing onfrom, and including, the effective date of the Spin-Off. Such adjustment shall become occur on the tenth Trading Day from, and including, the effective date of the Spin-Off and shall be applied on a retroactive basis from, and including, the effective date of the Spin-Off; provided that in respect of any conversion occurring prior to the effective date of the Spin-Off with respect to which the Settlement Date would occur during the 10 Trading Days from, and including, the effective date of any Spin-Off, references with respect to the Spin-Off to the 10 consecutive Trading-Day period shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the Settlement Date in determining the applicable Conversion Rate; provided, further, that in respect of any conversion occurring prior to the effective date of the Spin-Off with respect to which the Settlement Date would occur during the three Trading Days from, and including, the effective date of such Spin-Off, references to the 10 consecutive Trading-Day period shall be deemed replaced with a three consecutive Trading-Day period with such adjustment to the Conversion Rate being applied on a retroactive basis from, and including, the effective date of the Spin-Off.
(d) If the Company makes any dividend or any other distribution of cash to the holders of all or substantially all of the Common Stock, then immediately prior to 9:00 a.m., New York City time, the opening of business on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted increased based on the following formula: CR1=CR0 x SP0 SP0-C where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the Ex-Dividend Date for such dividend or distribution CR1 = the Conversion Rate in effect immediately after the Ex-Dividend Date for such dividend or distribution SP0 = the average of the Daily VWAP of the Common Stock for each Trading Day in the five consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the distribution (excluding such Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and Date) C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary SharesCommon Stock. An In connection with any adjustment to the Conversion Rate made pursuant to based on this Section 12.03(e) shall become effective immediately prior to 9:00 a.m.6.03(d), New York City timethe Company must issue a press release for publication through Dow ▇▇▇▇▇ & Company, on Inc., Bloomberg Business News, BusinessWire, or PR Newswire or a substantially equivalent financial news organization within five Business Days following the Ex-Dividend Record Date for the applicable such dividend or distributiondistribution (excluding such record date), announcing such an adjustment. If “C” (as defined above) is equal to any dividend or greater than “SP0” (as defined above), in lieu distribution of the adjustment type described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d6.03(d) is declared but not so paid or made, the Conversion Rate shall will again be readjusted, effective as of the date the Company publicly announces not adjusted to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(fe) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to makes a payment in respect of a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary SharesCommon Stock, to the extent that the Fair Market Value (as determined below) of the cash and value of any other consideration included in the payment per Ordinary Share, share of Common Stock exceeds the Last reported Sale Price Daily VWAP of Ordinary Shares the Common Stock on the Trading Day immediately after next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (such last date, the “Expiration DateTime”), as it may be amended, the Conversion Rate will be adjusted increased based on the following formula: CR1=CR0 x AC+(SP1xOS1) OS0xSP1 where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Expiration Date; CR’ effective date of the adjustment CR1 = the Conversion Rate in effect on immediately after the Trading Day immediately following effective date of the Expiration Date; adjustment AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and any other consideration (as determined by the Company’s Board of Directors) paid or payable for the Ordinary Shares validly tendered shares accepted for purchase or exchanged and not withdrawn as of the Expiration Date; exchange in such tender or exchange offer OS0 = the number of Ordinary Shares shares of Common Stock outstanding immediately before prior to the last time tenders or exchanges may be made pursuant to date such tender or exchange offer expires OS1 = the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (the “Expiration Time”) (prior to after giving effect to the reduction of shares accepted for purchase or exchange in such tender or exchange offer); OS’ ) SP1 = the average of the Daily VWAP of the Common Stock over the 10 consecutive Trading-Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires. Such adjustment will occur on the tenth Trading Day from, and including, the Trading Day next succeeding the date such tender or exchange offer expires and shall be applied on a retroactive basis from, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that in respect of any conversion occurring prior to the date such tender or exchange offer expires with respect to which the Settlement Date would occur during the 10 Trading Days from, and including, the Trading Day next succeeding the date such tender or exchange offer expires, references with respect to the tender or exchange offer to the 10 consecutive Trading-Day period shall be deemed replaced with such lesser number of Ordinary Shares outstanding immediately after Trading Days as have elapsed between the Expiration Time Trading Day next succeeding the date such tender or exchange offer expires and the Settlement Date in determining the applicable Conversion Rate. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made.
(after giving effect solely f) The Company may (but is not required to) increase the Conversion Rate to avoid or diminish income tax to holders of Common Stock or rights to purchase Common Stock in connection with a dividend or distribution of shares (or rights to acquire shares) or any similar event treated as such tendefor income tax purposes.
(g) To the extent permitted by applicable law and the rules of any stock exchange or market upon which the Common Stock is listed or admitted for trading, the Company may increase the Conversion Rate by any amount for a period of at least 20 days if the Company’s Board of Directors determines that such increase would be in the best interest of the Company, which determination shall be conclusive.
Appears in 1 contract
Sources: First Supplemental Indenture (Annaly Capital Management Inc)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company as follows:
(a) If the Company issues Ordinary Shares to all or substantially all holders shares of Ordinary Shares Common Stock as a dividend or distributiondistribution on all of the shares of the Common Stock, or effects a share split or share combination, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be; CR’ = the new Conversion Rate in effect on immediately after the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be; and OS’ = the number of Ordinary Shares that would be shares of Common Stock outstanding immediately after, and solely as a result of, after such dividend or distribution, or the effective date of such share split or share combination, as the case may be. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after (i) the Ex-Dividend Date for such dividend or distributiondistribution or (ii) the date on which such split or combination becomes effective, as applicable. If any dividend or distribution of the type described in this Section 12.03(a11.02(a) is declared but not so paid or made, the new Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company effects distributes to all holders of its Common Stock any rights or warrants (other than pursuant to any rights plan described in Section 11.02(c)(ii) below) entitling them to purchase, for a subdivision or combination period of Ordinary Sharesnot more than 45 days after the Ex-Dividend Date for the distribution, shares of Common Stock at a price per share less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding the effective date of Ex-Dividend Date for such subdivision or combinationdistribution; CR’ = the new Conversion Rate in effect on immediately after the effective date of Ex-Dividend Date for such subdivision or combinationdistribution; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding Ex-Dividend Date for such distribution; X = the effective date total number of shares of Common Stock issuable pursuant to such subdivision rights or combinationwarrants; and OS’ Y = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, shares of Common Stock equal to the aggregate price payable to exercise such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than divided by the average of the Last Reported Sale Prices of the Ordinary Shares during Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to such rights or warrants; and Z = the number of Ordinary Shares equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announceddistribution. For purposes of this Section 12.03(c11.02(b), in determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable for such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declaredDirectors. If any right or warrant described in this Section 12.03(c11.02(b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c11.02(b) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for the applicable distribution.
(dc) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, assets or property of the Company to all or substantially all the holders of the Ordinary SharesCommon Stock, excluding:
(i) any dividends or distributions referred to in Section 12.03(aclause (a) or (b) above;
(ii) shares delivered in connection rights issued to all holders of Common Stock pursuant to a rights plan, where such rights are not at the time of such distribution exercisable, continue to trade with subdivisions of Ordinary Shares referred to the Common Stock and Holders will receive such rights together with any Common Stock upon conversion as described in Section 12.03(b) above11.06;
(iii) rights and warrants referred to dividends or distributions paid exclusively in Section 12.03(c) above;cash; and
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(dclause (c) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such distribution; CR’ = the new Conversion Rate in effect on immediately after the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares the Common Stock over the 10 consecutive Trading Day period ending on on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the average of the Fair Market Value Values (as determined by the Board of Directors of the CompanyDirectors) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, assets or assets, including securities, so distributed, expressed as an amount per Ordinary Shareproperty distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d11.02(c), each Holder of Notes shall be entitled to receive receive, for each $1,000 principal amount of Notes, without conversion and at the same time and upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversionthe same terms as holders of Common Stock, the amount and kind and amount of our capital stock, evidences of the Company’s indebtedness or other assets or property of the Company (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, options or warrants or options to purchase acquire the Company’s capital stock or other securities, as applicable, ) that such Holder would have received if such Holder had converted such Notes immediately prior owned a number of shares of Common Stock equal to the record date Conversion Rate in effect on the Trading Day immediately preceding the Ex-Dividend Date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(dclause (c) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists Common Stock of shares of Capital Stock of any class or series, or similar Equity Interestequity interest, in of or relating to a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m.before 5:00 p.m., New York City time, on the Ex-Dividend Date tenth Trading Day immediately following, and including, the effective date of the distribution Spin-Off will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the tenth Trading Day immediately preceding following, and including, the Exeffective date of the Spin-Dividend Date for such distributionOff; CR’ = the new Conversion Rate in effect on immediately after the Extenth Trading Day immediately following, and including, the effective date of the Spin-Dividend Date for such distributionOff; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests equity interest distributed to holders of Ordinary Shares Common Stock applicable to one share of Ordinary Shares during Common Stock over the first 10 consecutive Trading Day period commencing onimmediately following, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during Common Stock over the first 10 consecutive Trading Day period commencing onimmediately following, and including, the effective date of the Spin-Off. Such adjustment shall become occur immediately after the tenth Trading Day immediately following, and including, the effective immediately prior date of the Spin-Off provided that, for purposes of determining the Conversion Rate, in respect of any conversion during the ten Trading Days following the effective date of any Spin-Off, references within the portion of this clause (c) related to 9:00 a.m., New York City time, on “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Exeffective date of such Spin-Dividend Date for such distributionOff and the relevant Conversion Date. If any such dividend or distribution described in this Section 12.03(dclause (c) is declared but not paid or made, the new Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d.
(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights cash dividend or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), is made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company)Common Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such dividend or distribution; CR’ = the new Conversion Rate in effect on immediately after the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices Price of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that Common Stock of the Company pays as a dividend or otherwise distributes to holders of Ordinary SharesCommon Stock. An adjustment to the Conversion Rate made pursuant to this Section 12.03(eclause (d) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e11.02(d), each Holder of Notes shall be entitled to receive receive, for each $1,000 principal amount of Notes, without conversion and at the same time and upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversionthe same terms as holders of Common Stock, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior owned a number of shares of Common Stock equal to the record date Conversion Rate on the Trading Day immediately preceding the Ex-Dividend Date for determining the shareholders entitled to receive such cash dividend or distribution. If any such dividend or distribution described in this Section 12.03(dclause (d) is declared but not so paid or made, the new Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not readjusted to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(fe) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to makes a payment in respect of a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary SharesCommon Stock, to the extent that the Fair Market Value (as determined below) of the cash and value of any other consideration included in the payment per Ordinary Share, share of Common Stock exceeds the Last reported Reported Sale Price of Ordinary Shares the Common Stock on the Trading Day immediately after next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amendedoffer, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, the close of business on the Expiration Datelast Trading Day of the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires; CR’ = the new Conversion Rate in effect immediately following the last Trading Day of the 10 consecutive Trading Day period commencing on the Trading Day immediately following next succeeding the Expiration Datedate such tender or exchange offer expires; AC = the Fair Market Value aggregate value of all cash and any other consideration (as determined by the Board of Directors of the CompanyDirectors) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered shares purchased in such tender or exchanged and not withdrawn as of the Expiration Dateexchange offer; OS0 = the number of Ordinary Shares shares of Common Stock outstanding immediately before prior to the last time tenders expiration of such tender or exchanges may be made pursuant to exchange offer; OS’ = the number of shares of Common Stock outstanding immediately after the expiration of such tender or exchange offer (the “Expiration Time”) (prior to after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); OSand SP’ = the average of the Last Reported Sale Prices of Common Stock over the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires. The adjustment to the Conversion Rate under this clause (e) shall become effective immediately following the tenth Trading Day next succeeding the date such tender or exchange offer expires; provided that, for purposes of determining the Conversion Rate, in respect of any conversion during the ten Trading Days following the date that any tender or exchange offer expires, references within this clause (e) to 10 Trading Days shall be deemed replaced with such lesser number of Ordinary Shares Trading Days as have elapsed between the date such tender or exchange offer expires and the relevant Conversion Date. If the Company or one of its Subsidiaries is obligated to purchase Common Stock pursuant to any such tender or exchange offer but are permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Conversion Rate shall be readjusted to be the Conversion Rate that would be in effect if such tender or exchange offer had not been made.
(f) Notwithstanding the foregoing provisions of this Section 11.02, no adjustment will be made thereunder, nor shall an adjustment be made to the ability of a Holder to convert, for any distribution described therein if the Holder will otherwise participate in the distribution without conversion of such Holder’s Notes as if such Holder held a number of shares of Common Stock equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of the Notes held by such Holder, without having to convert its Notes. Further, if the application of the foregoing formulas in this Section 11.02 would result in a decrease in the Conversion Rate, no adjustment to the Conversion Rate will be made (except on account of share combinations).
(g) No adjustment to the Conversion Rate will be made unless as specifically set forth in this Section 11.02 and Section 11.03.
(h) Without limiting the foregoing, no adjustment to the Conversion Rate need be made:
(i) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in shares of Common Stock under any plan;
(ii) upon the issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present or future employee, director or consultant benefit plan or program or employee stock purchase plan of or assumed by the Company or any of its Subsidiaries;
(iii) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security not described in clause (ii) above and outstanding immediately as of the Issue Date;
(iv) for a change in the par value of the Common Stock; or
(v) for accrued and unpaid Interest.
(i) No adjustment to the Conversion Rate will be required unless the adjustment would require an increase or decrease of at least 1% of the Conversion Rate. If the adjustment is not made because the adjustment does not change the Conversion Rate by at least 1%, then the adjustment that is not made will be carried forward and taken into account in any future adjustment. All required calculations will be made to the nearest cent or 1/1000th of a share, as the case may be. Notwithstanding the foregoing, the Company shall make such carried forward adjustments, regardless of whether the aggregate adjustment is less than 1%, (i) on the Conversion Date for any Notes and (ii) if the Notes are called for redemption, all adjustments not previously made will be made for all the Notes to be converted after the Expiration Time (Company’s notice of redemption to the applicable Redemption Date. If a Conversion Rate adjustment becomes effective on any Ex-Dividend Date in accordance with Section 11.02, and a Holder that has converted its Notes on or after giving effect solely such Ex-Dividend Date and on or prior to the related Record Date would be treated as the Record Holder of Common Stock as of the related Conversion Date as provided in Section 11.01(c) based on an adjusted Conversion Rate for such Ex-Dividend Date, then, notwithstanding the Conversion Rate adjustment provisions in Section 11.02, the Conversion Rate adjustment relating to such tendeEx-Dividend Date shall not be made for such converting Holder. Instead, such Holder shall be treated as if such Holder were the record owner of shares of Common Stock on an unadjusted basis on such Conversion Date and participate in the related dividend, distribution or other event giving rise to such adjustment.
(j) W
Appears in 1 contract
Sources: First Supplemental Indenture (Goodrich Petroleum Corp)
Adjustments to Conversion Rate. The applicable Conversion Rate shall be adjusted by the Company as follows:
(a) If the Company issues Ordinary Shares to all or substantially all holders shares of Ordinary Shares Common Stock as a dividend or distributiondistribution on shares of the Common Stock, or effects a share split or share combination, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be; CR’ = the new Conversion Rate in effect on immediately after the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be; and OS’ = the number of Ordinary Shares that would be shares of Common Stock outstanding immediately after, and solely as a result of, after such dividend or distribution, or the effective date of such share split or share combination, as the case may be. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after (i) the Ex-Dividend Date for such dividend or distributiondistribution or (ii) the date on which such split or combination becomes effective, as applicable. If any dividend or distribution of the type described in this Section 12.03(a12.02(a) is declared but not so paid or made, the new Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company effects distributes to all holders of its Common Stock any rights or warrants entitling them to purchase, for a subdivision or combination period of Ordinary Sharesnot more than 45 days after the Ex-Dividend Date for the distribution, shares of Common Stock at a price per share less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding the effective date of Ex-Dividend Date for such subdivision or combinationdistribution; CR’ = the new Conversion Rate in effect on immediately after the effective date of Ex-Dividend Date for such subdivision or combinationdistribution; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding Ex-Dividend Date for such distribution; X = the effective date total number of shares of Common Stock issuable pursuant to such subdivision rights or combinationwarrants; and OS’ Y = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, shares of Common Stock equal to the aggregate price payable to exercise such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than divided by the average of the Last Reported Sale Prices of the Ordinary Shares during Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to such rights or warrants; and Z = the number of Ordinary Shares equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announceddistribution. For purposes of this Section 12.03(c12.02(b), in determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable for such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declaredDirectors. If any right or warrant described in this Section 12.03(c12.02(b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c12.02(b) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for the applicable distribution.
(dc) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, assets or property of the Company to all or substantially all the holders of the Ordinary SharesCommon Stock, excluding:
(i) any dividends or distributions referred to in Section 12.03(aclause (a) or (b) above;
(ii) shares delivered dividends or distributions paid exclusively in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;cash; and
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(dclause (c) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such distribution; CR’ = the new Conversion Rate in effect on immediately after the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the average of the Fair Market Value Values (as determined by the Board of Directors of the CompanyDirectors) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, assets or assets, including securities, so distributed, expressed as an amount per Ordinary Shareproperty distributed with respect to each outstanding share of Common Stock over the 10 consecutive Trading-Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(dclause (c) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of Common Stock or shares of Capital Stock of any class or series, or similar Equity Interestequity interest, in of or relating to a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m.before 5:00 p.m., New York City time, on the Ex-Dividend Date tenth Trading Day immediately following, and including, the effective date of the distribution Spin-Off will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the tenth Trading Day immediately preceding following, and including, the Exeffective date of the Spin-Dividend Date for such distributionOff; CR’ = the new Conversion Rate in effect on immediately after the Extenth Trading Day immediately following, and including, the effective date of the Spin-Dividend Date for such distributionOff; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests equity interest distributed to holders of Ordinary Shares Common Stock applicable to one share of Ordinary Shares during Common Stock over the first 10 consecutive Trading Day period commencing onimmediately following, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during Common Stock over the first 10 consecutive Trading Day period commencing onimmediately following, and including, the effective date of the Spin-Off. Such adjustment shall become occur immediately after the tenth Trading Day immediately following, and including, the effective immediately prior date of the Spin-Off provided that, for purposes of determining the Conversion Rate, in respect of any conversion during the ten Trading Days following the effective date of any Spin-Off, references within the portion of this clause (c) related to 9:00 a.m., New York City time, on “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Exeffective date of such Spin-Dividend Date for such distributionOff and the relevant Conversion Date. If any such dividend or distribution described in this Section 12.03(dclause (c) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(fd) If the Company any cash dividend or any distribution is made to all holders of its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amendedCommon Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Expiration DateEx-Dividend Date for such distribution; CR’ = the new Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution; SP0 = the Last Reported Sale Price of the Common Stock on the Trading Day immediately following preceding the Expiration DateEx-Dividend Date for such distribution; AC and C = the Fair Market Value (as determined by the Board amount in cash per share of Directors Common Stock of the CompanyCompany distributes to holders of Common Stock. An adjustment to the Conversion Rate made pursuant to this clause (d) shall become effective immediately after the Ex-Dividend Date for the applicable dividend or distribution. If any dividend or distribution described in this clause (d) is declared but not so paid or made, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(e) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Last Reported Sale Price of the Common Stock on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before Trading Day next succeeding the last time date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at the close of business on the last Trading Day of the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires; CR’ = the new Conversion Rate in effect immediately following the last Trading Day of the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for shares purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the expiration of such tender or exchange offer; OS’ = the number of shares of Common Stock outstanding immediately after the expiration of such tender or exchange offer (the “Expiration Time”) (prior to after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); OSand SP’ = the average of the Last Reported Sale Prices of Common Stock over the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires. The adjustment to the Conversion Rate under this clause (e) shall become effective immediately following the tenth Trading Day next succeeding the date such tender or exchange offer expires; provided that, for purposes of determining the Conversion Rate, in respect of any conversion during the ten Trading Days following the date that any tender or exchange offer expires, references within this clause (e) to 10 Trading Days shall be deemed replaced with such lesser number of Ordinary Shares Trading Days as have elapsed between the date such tender or exchange offer expires and the relevant Conversion Date. If the Company or one of its Subsidiaries is obligated to purchase Common Stock pursuant to any such tender or exchange offer but are permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Conversion Rate shall be readjusted to be the Conversion Rate that would be in effect if such tender or exchange offer had not been made.
(f) Without limiting the foregoing provisions of this Section 12.02, no adjustment will be made thereunder, nor shall an adjustment be made to the ability of a Holder to convert, for any distribution described therein if the Holder will otherwise participate in the distribution without conversion of such Holder’s securities as if such Holder held a number of shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of notes held by such holder, without having to convert its Securities. Further, if the application of the foregoing formulas in this Section 12.02 would result in a decrease in the Conversion Rate, no adjustment to the Conversion Rate will be made (except on account of share combinations).
(g) No adjustment to the Conversion Rate will be made unless as specifically set forth in this Section 12.02 and Section 12.03. Further, in the event of an adjustment to the Conversion Rate pursuant to Section 12.02(d) or Section 12.02(e), in no event will the Conversion Rate exceed 50 shares of Common Stock per $1,000 principal amount of Securities. For the avoidance of doubt, this cap on the Conversion Rate will not apply to an adjustment to the Conversion Rate pursuant to Section 12.02(a), Section 12.02(b) and Section 12.02(c).
(h) Without limiting the foregoing, no adjustment to the Conversion Rate need be made:
(i) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in shares of Common Stock under any plan;
(ii) upon the issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present or future employee, director or consultant benefit plan or program or employee stock purchase plan of or assumed by the Company or any of its Subsidiaries;
(iii) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security not described in clause (ii) above and outstanding immediately as of the Issue Date;
(iv) for a change in the par value of the Common Stock;
(v) for any “make-whole” premium as described in Section 6.01(d);
(vi) for accrued and unpaid Interest (including any Additional Interest); or
(vii) upon the issuance of any shares of Common Stock pursuant to the warrants contemplated by the Offering Memorandum.
(i) No adjustment to the Conversion Rate will be required unless the adjustment would require an increase or decrease of at least 1% of the Conversion Rate. If the adjustment is not made because the adjustment does not change the Conversion Rate by at least 1%, then the adjustment that is not made will be carried forward and taken into account in any future adjustment. All required calculations will be made to the nearest cent or 1/1000th of a share, as the case may be. Notwithstanding the foregoing, if the Securities are called for redemption, all adjustments not previously made will be made on the applicable Redemption Date.
(j) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officers’ Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the Expiration Time facts requiring such adjustment. Unless and until a Trust Officer of the Trustee shall have received such Officers’ Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Rate to the Holder of each Security at such Holder’s last address appearing on the Securities Register provided for in Section 2.05 of this Indenture within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
(after giving k) For purposes of this Section 12.02, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. If the Company pays any dividend or makes any distribution on, or issues any rights, options or warrants in respect of, shares of Common Stock held in treasury by the Company, the Company shall not issue, transfer or convey such shares of Common Stock in a manner that would have the effect solely of circumventing the provisions of this Section 12.02.
(l) Whenever any provision of this Article 12 requires a calculation of an average of Last Reported Sale Prices or Daily VWAP over a span of multiple days, the Company will make appropriate adjustments (determined in good faith by the Board of Directors) to such tendeaccount for any adjustment to the Conversion Rate that become
Appears in 1 contract
Adjustments to Conversion Rate. The Conversion Rate shall will be adjusted by subject to adjustment in the Company as followsfollowing events:
(a) If the Company exclusively issues Ordinary Shares to all or substantially all holders of Ordinary Shares as a dividend or distributiondistribution on the Ordinary Shares, or if the Company effects a share split or share combination, the Conversion Rate will shall be adjusted based on the following formula: where, : CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Trading Day immediately preceding Record Date for the Ex-Dividend Date ADSs for such dividend or distribution, or immediately prior to the open of business on the effective date of such share split or share combination, as applicable; CR’ CR1 = the Conversion Rate in effect immediately after the close of business on such Record Date or immediately after the Ex-Dividend Date for open of business on such dividend or distributioneffective date, as applicable; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m.immediately prior to the close of business on such Record Date or immediately prior to the open of business on such effective date, New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distributionas applicable; and OS’ OS1 = the number of Ordinary Shares that would be outstanding immediately afterafter giving effect to such dividend, and solely as a result ofdistribution, such dividend share split or distributionshare combination. Such Any adjustment made under this Section 7.3(a) shall become effective immediately prior to 9:00 a.m., New York City time, after the close of business on the Ex-Dividend Record Date for the ADSs for such dividend or distribution, or immediately after the open of business on the effective date for such share split or share combination, as applicable. If any dividend or distribution of the type described in this Section 12.03(a7.3(a) is declared but not so paid or made, the Conversion Rate shall again be adjustedimmediately readjusted, effective as of the date the Company publicly announces Board of Directors determines not to make pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company effects a subdivision or combination of Ordinary Shares, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of the Ordinary Shares (directly or in the form of ADSs) any rights rights, options or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchasethem, for a period of not more than 45 calendar days after the announcement date of the announcement for such issuance, to subscribe for or purchase Ordinary Shares (directly or in the form of ADSs) at an aggregate a price per share Ordinary Share that is less than the average of the Last Reported Sale Prices of the Ordinary Shares during or the 10 consecutive Trading Day period ending on ADSs, as the Trading Day immediately preceding case may be (divided by, in the date such issuance was first publicly announcedcase of the ADSs, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to such rights or warrants; and Z = the number of Ordinary Shares equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided then represented by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced. For purposes of this Section 12.03(cone ADS), in determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable for such Ordinary Shares, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution.
(d) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
(i) any dividends or distributions referred to in Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value (as determined by the Board of Directors of the Company) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of shares of Capital Stock of any class or series, or similar Equity Interest, in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for date of announcement of such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or madeissuance, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(f) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted increased based on the following formula: where, : CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Expiration DateRecord Date for the ADSs for such issuance; CR’ CR1 = the Conversion Rate in effect immediately after the close of business on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration such Record Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”) (prior to giving effect to the close of business on such tender or exchange offer); OS’ = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tendeRecord Date;
Appears in 1 contract
Sources: Convertible Note Purchase Agreement (Alibaba Group Holding LTD)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company as follows:
(a) If the Company issues Ordinary Shares to all or substantially all holders shares of Ordinary Shares Common Stock as a dividend or distributiondistribution on shares of the Common Stock, or effects a share split or share combination, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be; CR’ ' = the new Conversion Rate in effect on immediately after the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be; and OS’ ' = the number of Ordinary Shares that would be shares of Common Stock outstanding immediately after, and solely as a result of, such dividend or distributionevent. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after (i) the Ex-Dividend Date for such dividend or distributiondistribution or (ii) the date on which such split or combination becomes effective, as applicable. If any dividend or distribution of the type described in this clause Section 12.03(a9.02(a) is declared but not so paid or made, the new Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company effects distributes to all holders of its Common Stock any rights or warrants entitling them to purchase, for a subdivision or combination period of Ordinary Sharesnot more than 45 days after the Ex-Dividend Date for the distribution, shares of Common Stock at a price per share less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the declaration date for such distribution, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding the effective date of Ex-Dividend Date for such subdivision or combinationdistribution; CR’ ' = the new Conversion Rate in effect on immediately after the effective date of Ex-Dividend Date for such subdivision or combinationdistribution; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding Ex-Dividend Date for such distribution; X = the effective date total number of shares of Common Stock issuable pursuant to such subdivision rights or combinationwarrants; and OS’ Y = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, shares of Common Stock equal to the aggregate price payable to exercise such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than divided by the average of the Last Reported Sale Prices of the Ordinary Shares during Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to such rights or warrants; and Z = the number of Ordinary Shares equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announceddistribution. For purposes of this clause Section 12.03(c9.02(b), in determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable for such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declaredDirectors. If any right or warrant described in this clause Section 12.03(c9.02(b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this clause Section 12.03(c9.02(b) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for the applicable distribution.
(dc) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, assets or property of the Company to all or substantially all the holders of the Ordinary SharesCommon Stock, excluding:
(i) any dividends or distributions referred as to in Section 12.03(awhich an adjustment applies under clause (a) or (b) above;
(ii) shares delivered dividends or distributions paid exclusively in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;cash; and
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(dclause (c) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such distribution; CR’ ' = the new Conversion Rate in effect on immediately after the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value (as determined by the Board of Directors of the CompanyDirectors) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, assets or assets, including securities, so distributed, expressed as an amount per Ordinary Shareproperty distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(dclause (c) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists Common Stock of shares of Capital Stock of any class or series, or similar Equity Interestequity interest, in of or relating to a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m.before 5:00 p.m., New York City time, on the Ex-Dividend Date tenth Trading Day immediately following, and including, the effective date of the distribution Spin-Off will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the tenth Trading Day immediately preceding following, and including, the Exeffective date of the Spin-Dividend Date for such distributionOff; CR’ ' = the new Conversion Rate in effect on immediately after the Extenth Trading Day immediately following, and including, the effective date of the Spin-Dividend Date for such distributionOff; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests equity interest distributed to holders of Ordinary Shares Common Stock applicable to one share of Ordinary Shares during Common Stock over the first 10 consecutive Trading Day period commencing onimmediately following, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during Common Stock over the first 10 consecutive Trading Day period commencing onimmediately following, and including, the effective date of the Spin-Off. Such adjustment shall become occur immediately after the tenth Trading Day immediately following, and including, the effective immediately prior date of the Spin-Off; provided that in respect of any conversion during the ten Trading Days following the effective date of any Spin-Off, references within the portion of this clause (c) related to 9:00 a.m., New York City time, on “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Exeffective date of such Spin-Dividend Date for such distributionOff and the relevant Conversion Date. If any such dividend or distribution described in this Section 12.03(dclause (c) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(fd) If the Company any cash dividend or any distribution is made to all holders of its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amendedCommon Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Expiration DateEx-Dividend Date for such distribution; CR’ ' = the new Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution; SP0 = the Last Reported Sale Price of the Common Stock on the Trading Day immediately following preceding the Expiration DateEx-Dividend Date for such distribution; AC and C = the Fair Market Value (as determined by the Board amount in cash per share of Directors Common Stock of the CompanyCompany distributes to holders of Common Stock. An adjustment to the Conversion Rate made pursuant to this clause (d) shall become effective immediately after the Ex-Dividend Date for the applicable dividend or distribution. If any dividend or distribution described in this clause (d) is declared but not so paid or made, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(e) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Last Reported Sale Price of the Common Stock on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before Trading Day next succeeding the last time date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at the close of business on the last Trading Day of the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires; CR' = the new Conversion Rate in effect immediately following the last Trading Day of the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for shares purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the expiration of such tender or exchange offer; OS' = the number of shares of Common Stock outstanding immediately after the expiration of such tender or exchange offer (the “Expiration Time”) (prior to after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); OS’ and SP' = the average of the Last Reported Sale Prices of Common Stock over the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires. The adjustment to the Conversion Rate under this clause (e) shall become effective immediately following the tenth Trading Day next succeeding the date such tender or exchange offer expires; provided that, in respect of any conversion during the ten Trading Days following the date that any tender or exchange offer expires, references within this clause (e) to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the date such tender or exchange offer expires and the relevant Conversion Date. If the Company or one of its Subsidiaries is obligated to purchase Common Stock pursuant to any such tender or exchange offer but are permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Conversion Rate shall be readjusted to be the Conversion Rate that would be in effect if such tender or exchange offer had not been made.
(f) Notwithstanding the foregoing provisions of this Section 9.02, no adjustment will be made thereunder, nor shall an adjustment be made to the ability of a Holder to convert, for any distribution described therein if the Holder will otherwise participate in the distribution on the same terms as holders of Common Stock as if such Holder held a number of shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of the Securities held by such holder, without having to convert its Securities. Further, if the application of the foregoing formulas in this Section 9.02 would result in a decrease in the Conversion Rate, no adjustment to the Conversion Rate will be made (except on account of share combinations).
(g) No adjustment to the Conversion Rate will be made unless as specifically set forth in this Section 9.02 and Section 9.03.
(h) Without limiting the foregoing, no adjustment to the Conversion Rate need be made:
(i) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in shares of Common Stock under any plan;
(ii) upon the issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present or future employee, director or consultant benefit plan or program or employee stock purchase plan of or assumed by the Company or any of its Subsidiaries;
(iii) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security not described in clause (ii) above and outstanding as of the Exchanged Securities Issue Date;
(iv) for a change in the par value of the Common Stock; or
(v) for accrued and unpaid Interest (including Contingent Interest and Additional Interest, if any) on the Securities.
(i) No adjustment to the Conversion Rate will be required unless the adjustment would require an increase or decrease of at least 1% of the Conversion Rate. If the adjustment is not made because the adjustment does not change the Conversion Rate by at least 1%, then the adjustment that is not made will be carried forward and taken into account in any future adjustment. All required calculations will be made to the nearest cent or 1/1000th of a share, as the case may be. Notwithstanding the foregoing, if the Securities are called for redemption or upon a Fundamental Change, all adjustments not previously made will be made for all the Securities to be converted after the Company’s notice of redemption to the applicable Redemption Date or after the Company’s notice of a Fundamental Change, as applicable.
(j) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officer’s Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have received such Officer’s Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Rate to the Holder of each Security at such Holder’s last address appearing on the Securities Register provided for in Section 2.04 of this First Supplemental Indenture within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
(k) For purposes of this Section 9.02, the number of Ordinary Shares shares of Common Stock at any time outstanding immediately after shall not include shares held in the Expiration Time treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. If the Company pays any dividend or makes any distribution on, or issues any rights, options or warrants in respect of, shares of Common Stock held in treasury by the Company, the Company shall not issue, transfer or convey such shares of Common Stock in a manner that would have the effect of circumventing the provisions of this Section 9.02.
(after giving effect solely l) If Net-Share Settlement applies and any provision of this Article 9 requires a calculation of an average of the Daily VWAP over a span of multiple days, the Company will make appropriate adjustments to the Daily Settlement Amount (determined in good faith by the Board of Directors) to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date of the event occurs, at any time during the period from which such tendecalculation is to be calculated; provided that such adjustments shall only be made to the Daily Settlement Amounts relating to days prior to the date that the adjustment to the Conversion Rate becomes effective.
Appears in 1 contract
Sources: First Supplemental Indenture (Flotek Industries Inc/Cn/)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company subject to adjustment from time to time, without duplication, as follows:
(a) If In case the Company issues Ordinary Shares to all shall (i) pay a dividend, or substantially all holders make a distribution on its Common Stock, payable exclusively in shares of Ordinary Shares as Common Stock or other Capital Stock of the Company; (ii) subdivide or split its outstanding Common Stock into a dividend greater number of shares; (iii) combine or distributionreclassify its outstanding Common Stock into a smaller number of shares; or (iv) issue by reclassification of the shares of Common Stock any shares of the Company's Capital Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m.immediately prior to the record date or effective date, New York City timeas the case may be, on for the Trading Day immediately preceding adjustment pursuant to this Section 9.8(a) as described below, shall be adjusted so that the Ex-Dividend Date Holder of any Notes thereafter surrendered for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; OS0 = conversion shall be entitled to receive the number of Ordinary Shares outstanding at 5:00 p.m.shares of Common Stock and/or Capital Stock which such Holder would have owned or have been entitled to receive after the happening of any of the events described above had such Notes been converted immediately prior to such record date or effective date, New York City time, on as the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distributioncase may be. Such An adjustment made pursuant to this Section 9.8(a) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for such applicable record date in the case of a dividend or distributiondistribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or reclassification of the Common Stock. If any dividend or distribution of the type described in this Section 12.03(aclause (i) above is declared but not so paid or made, the Conversion Rate shall again be adjustedimmediately readjusted, effective as of the date the Company publicly announces Board of Directors determines not to make pursue such dividend or distributionaction, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If any subdivision or split, combination or reclassification or issuance of the type described in clauses (ii) through (iv) of this Section 9.8(a) is not so made, the Conversion Rate shall again be immediately readjusted, effective as of the date the Board of Directors determines not to pursue such action, to the Conversion Rate that would then be in effect if such subdivision or split, combination or reclassification or issuance had not been declared.
(b) If In case the Company effects at any time or from time to time after the issuance of the Notes shall issue rights or warrants to all or substantially all holders of the Common Stock entitling them to subscribe for or purchase Common Stock at a subdivision price per share less (or combination having a conversion price per share less) than the Current Market Price per share of Ordinary SharesCommon Stock, the Conversion Rate will shall be adjusted based on so that the following formula: where, CR0 = same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the record date fixed for determination of stockholders entitled to receive such rights or warrants (prior to any adjustment in accordance with this Section 9.8(b)) by a fraction of which (i) the numerator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at 5:00 p.m., New York City time, the Current Market Price per share of Common Stock on the earlier of such record date and the Trading Day immediately preceding the effective ex date for such issuance of such subdivision rights or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combinationwarrants. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately prior to 9:00 a.m., New York City time, after the opening of business on the day following the record date on which such split or combination becomes effective.
(c) If for the Company issues determination of stockholders entitled to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to receive such rights or warrants; and Z = . To the number extent that shares of Ordinary Shares equal Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall immediately be readjusted to the quotient Conversion Rate which would then be in effect had the adjustments made upon the issuance of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending been made on the Trading Day basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be immediately preceding readjusted to be the Conversion Rate which would then be in effect if such record date for the determination of shareholders entitled to receive such issuance was first publicly announcedrights or warrants had not been fixed. For purposes of this Section 12.03(c), in In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Pricessuch Current Market Price, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereofwarrants, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distributionDirectors.
(dc) If In case the Company distributes shares of Capital Stockshall, evidences of its indebtedness by dividend or other assetsin a merger, including securitiesamalgamation or consolidation or otherwise, of the Company distribute to all or substantially all the holders of the Ordinary SharesCommon Stock any evidences of Indebtedness, excluding:
shares of Capital Stock of any class or series, other securities, cash or assets (excluding (i) any dividends dividend, distribution or distributions issuance covered by those referred to in Section 12.03(a9.8(a) above;
or 9.8(b) hereof, (ii) shares delivered any dividend or distribution paid exclusively in connection with subdivisions of Ordinary Shares cash referred to in Section 12.03(b9.8(d) above;
hereof or (iii) rights and warrants referred to in Section 12.03(c) above;
(iv) any dividend or distribution that constitutes a Spin-Offs Off which is covered by Section 9.8(e) hereof), or rights or warrants to which the provisions set forth below in this Section 12.03(d) shall apply;
subscribe for or purchase any of its securities (v) the excluding those rights or warrants referred to in Section 9.8(b) and also excluding the distribution of rights to all holders of Common Stock pursuant to a stockholders rights plan or the detachment of such rights under the terms of such stockholder rights plan) (any of the foregoing hereinafter in this Section 12.03(d9.8(c) below (to called the extent and as specified therein"Distributed Assets"); and
(vi) dividends or distributions referred to , then in Section 12.03(e) below. then each such case the Conversion Rate will shall be adjusted based on so that the following formula: where, CR0 = same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Trading Day immediately preceding record date fixed for determination of stockholders entitled to receive such distribution by a fraction of which (A) the Ex-Dividend Date for such distribution; CR’ = numerator shall be the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average Current Market Price per share of the Last Reported Sale Prices Common Stock and (B) the denominator shall be (1) the Current Market Price per share of Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = Common Stock less (2) the Fair Market Value on such record date (as determined in good faith by the Board of Directors Directors, whose determination shall be conclusive evidence of such Fair Market Value, and described in a certificate filed with the Trustee and the Paying Agent) of the Company) on the Ex-Dividend Date for such distribution portion of the shares Distributed Assets so distributed applicable to one share of Capital Common Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date record date for the determination of stockholders entitled to receive such distribution; provided, however, that, if (i) the Fair Market Value of the portion of the Distributed Assets so distributed applicable distribution. If “FMV” (as defined above) to one share of Common Stock is equal to or greater than “SP0” the Current Market Price of the Common Stock or (as defined above)ii) the Current Market Price of the Common Stock is greater than the Fair Market Value per share of such Distributed Assets by less than $1.00, other than in respect to a Public Spin-Offthen, in lieu of the adjustment described provided in this Section 12.03(d9.8(c), adequate provision shall be made so that each Holder of Notes shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversionthe shares of Common Stock, the kind and amount of assets (including cash)assets, shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s debt securities, as applicable, that such or rights or warrants comprising the Distributed Assets the Holder would have received if had such Holder had converted such Notes immediately prior to the record date for determining the shareholders determination of stockholders entitled to receive such distribution. With respect In the event that such distribution is not so paid or made, the Conversion Rate shall again be adjusted to an adjustment pursuant to this Section 12.03(dthe Conversion Rate which would then be in effect if such distribution had not been declared.
(d) where there has been a payment of a In case the Company shall make any distributions, by dividend or other distribution on the Ordinary Shares consists otherwise, consisting exclusively of cash to all or substantially all holders of outstanding shares of Capital Stock of any class or seriesCommon Stock, or similar Equity Interestthen, and in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Marketeach such case, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, the close of business on the Ex-Dividend Date record date fixed for the determination of holders of Common Stock entitled to receive such distribution by a fraction of which (A) the numerator shall be the Current Market Price per share of the Common Stock and (B) the denominator shall be (1) the Current Market Price per share of Common Stock minus (2) the amount per share of such distributions (appropriately adjusted from time to time for any stock dividends on or subdivisions or combination of Common Stock); provided, however, that if (i) the per share amount of such distribution will equals or exceeds the Current Market Price of the Common Stock or (ii) the Current Market Price of the Common Stock exceeds the per share amount of such distribution by less than $1.00, in lieu of the foregoing adjustment, adequate provision shall be increased based on made so that each Holder of a Note shall have the following formula: whereright to receive upon conversion, CR0 = such dividend or distribution such Holder would have received had such Holder converted each Note immediately prior to the record date for the determination of stockholders entitled to receive the distribution.
(e) In the event that the Company makes any distribution to all holders of Common Stock that constitutes a Spin-Off, the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Trading Day immediately preceding record date fixed for the Exdetermination of holders of Common Stock entitled to receive such distribution by a fraction of which (i) the numerator shall be the Spin-Dividend Date for Off Market Price per share of the Common Stock on such distribution; CR’ = record date plus the Spin-Off Market Price per Equity Interest of the Subsidiary or other business unit of the Company on such record date applicable to each share of Common Stock and (ii) the denominator shall be the Spin-Off Market Price per share of the Common Stock. The adjustment to the Conversion Rate set forth in effect on this Section 9.8(e) will occur at the Ex-Dividend Date for such distribution; FMV0 = earlier of (1) the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive 10th Trading Day period commencing onfrom, and including, the effective date of the Spin-Off; Off and MP0 = (2) the average date of the Last Reported Sale Prices Initial Public Offering of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of securities being distributed in the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to that Initial Public Offering is effected simultaneously with the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversionSpin-Off; provided, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d)however, rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances)that, which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): if (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence Spin-Off Market Price per Equity Interest of the earliest Trigger Event, whereupon such rights and warrants shall be deemed Subsidiary so distributed applicable to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per one share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) Common Stock is equal to or greater than “SP0” the Current Market Price of the Common Stock or (as defined above)ii) the Current Market Price of the Common Stock is greater than the Spin-Off Market price per Equity Interest of the Subsidiary by less than $1.00, in lieu of the adjustment described in this Section 12.03(e)foregoing adjustment, adequate provision shall be made so that each Holder of Notes a Note shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such distribution such Holder would have received if had such Holder had converted such Notes each Note immediately prior to the record date for determining the shareholders determination of stockholders entitled to receive such dividend or the distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(f) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to In case a tender offer or exchange offer made by the Company or any Subsidiary shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of its Subsidiaries for all or any portion consideration per share of the Ordinary Shares, to the extent that the Common Stock having a Fair Market Value (as determined below) in good faith by the Company's Board of the cash Directors, whose determination shall be conclusive and any other consideration included described in the payment per Ordinary Share, exceeds the Last reported Sale Price a resolution of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the CompanyDirectors) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn that as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time (the "Expiration Time") tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) exceeds the “Last Reported Sale Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time”, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate by a fraction,
(i) the numerator of which shall be the sum of (x) the Fair Market Value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares") and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) at the Expiration Time and the Last Reported Sale Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, and
(ii) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Last Reported Sale Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, such adjustment to become effective immediately prior to giving effect the opening of business on the day following the Expiration Time. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer); OS’ = , but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again immediately be readjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made.
(g) Upon conversion of the Notes, the Holders shall receive, if they receive shares of Common Stock, in addition to the Common Stock issuable upon such conversion, the rights issued under any shareholder rights plan the Company implements (notwithstanding the occurrence of an event causing such rights to separate from the Common Stock at or prior to the time of conversion) unless, prior to conversion, the rights have expired, terminated or been redeemed or exchanged in accordance with the rights plan. If, and only if, the Holders of Notes receive rights under such shareholder rights plans as described in the preceding sentence upon conversion of their Notes, then no other adjustment pursuant to this Section 9.8 shall be made in connection with such shareholder rights plans.
(h) For purposes of this Section 9.8, the number of Ordinary Shares shares of Common Stock at any time outstanding immediately after shall not include shares held in the Expiration Time treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(after giving effect solely i) Notwithstanding the foregoing, in the event of an adjustment pursuant to such tendeSections 9.8(d) or (f), the "Maximum Conversion Rate" shall initially be 39.2157 and shall be appropriately adjusted from time to time pursuant to any adjustments in Section 9.8(a), (b), (c) and (e) hereof.
Appears in 1 contract
Sources: Indenture (Kroll Inc)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company from time to time, without duplication, as follows:
(a) If In case the Company issues Ordinary Shares to all or substantially all holders of Ordinary Shares as shall (i) pay a dividend or distribution, the Conversion Rate will be adjusted based make a distribution on the following formula: whereCommon Stock exclusively in shares of its Common Stock or other Capital Stock; (ii) subdivide or split its outstanding Common Stock into a greater number of shares; (iii) combine or reclassify its outstanding Common Stock into a smaller number of shares; or (iv) issue by reclassification of the shares of Common Stock any shares of the Company's Capital Stock, CR0 = the Conversion Rate in effect at 5:00 p.m.immediately prior to the record date or effective date, New York City timeas the case may be, on for the Trading Day immediately preceding adjustment pursuant to this Section 9.6(a) as described below, shall be adjusted so that the Ex-Dividend Date Holder of any Notes thereafter surrendered for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; OS0 = conversion shall be entitled to receive the number of Ordinary Shares outstanding at 5:00 p.m.shares of Common Stock which such Holder would have owned or have been entitled to receive after the happening of any of the events described above had such Notes been converted immediately prior to such record date or effective date, New York City time, on as the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distributioncase may be. Such An adjustment made pursuant to this Section 9.6(a) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for such applicable record date in the case of a dividend or distributiondistribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or reclassification of the Common Stock. If any dividend or distribution of the type described in this Section 12.03(aclause (i) above is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If In case the Company effects shall issue rights or warrants to all holders of the Common Stock entitling them (for a subdivision period expiring within 60 days after the date of issuance of such rights or combination warrants) to subscribe for or purchase Common Stock at a price per share less than the Market Price per share of Ordinary Shares, the Conversion Rate will be adjusted based Common Stock on the following formula: whererecord date fixed for determination of shareholders entitled to receive such rights or warrants, CR0 = the Conversion Rate in effect immediately after such record date shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately after such record date by a fraction of which (i) the numerator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at 5:00 p.m., New York City time, the Market Price per share of Common Stock on the earlier of such record date or the Trading Day immediately preceding the effective ex distribution date for such issuance of such subdivision rights or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combinationwarrants. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately prior to 9:00 a.m., New York City time, after the opening of business on the day following the record date on which such split or combination becomes effective.
(c) If for the Company issues determination of shareholders entitled to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to receive such rights or warrants; and Z = . To the number extent that shares of Ordinary Shares equal Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall be readjusted to the quotient Conversion Rate which would then be in effect had the adjustments made upon the issuance of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending been made on the Trading Day immediately preceding basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such record date for the determination of shareholders entitled to receive such issuance was first publicly announcedrights or warrants had not been fixed. For purposes of this Section 12.03(c), in In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Pricessuch Market Price, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereofwarrants, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distributionDirectors.
(d) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
(i) In case the Company shall, whether by dividend or in a merger, amalgamation or consolidation or otherwise, distribute to all holders of Common Stock any dividends or distributions referred to in Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value (as determined by the Board of Directors of the Company) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences evidence of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of shares of Capital Stock of any class or series, other securities, cash or assets (excluding (1) any dividend, distribution or issuance covered by those referred to in Section 9.6(a) or 9.6(b) and (2) any dividend or distribution payable exclusively in cash, shares of Capital Stock or similar Equity Interest, Interests in the case of a Subsidiary or other business unit (a “Spin-Off”)off, that areand (3) any dividend or distribution paid exclusively in cash referred to in Section 9.6(d) (any of the foregoing hereinafter in this Section 9.6(c) called the "Distributed Assets or Securities") in an aggregate amount per share of Common Stock that, orcombined together with the aggregate amount of any other such distributions to all holders of its Common Stock made within the 12 months preceding the date of payment of such distribution, when issuedand in respect of which no adjustment pursuant to this Section 9.6(c) has been made, will be, traded or listed exceeds 15% of the Distribution Adjustment Market Price on the Nasdaq Stock Market, Trading Day immediately preceding the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”)declaration of such distribution, then the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by dividing the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, the close of business on the Ex-Dividend Date record date fixed for determination of holders of Common Stock entitled to receive that distribution by a fraction of which (A) the numerator shall be the Distribution Adjustment Market Price per share of the distribution will Common Stock, and (B) the denominator shall be increased based (1) the Distribution Adjustment Market Price per share of the Common Stock plus (2) the Fair Market Value on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on earlier of such record date or the Trading Day immediately preceding the Ex-Dividend Date ex date for such distribution; CR’ = dividend or distribution (as described in a certificate filed with the Conversion Rate in effect on Trustee and the Ex-Dividend Date for such distribution; FMV0 = the average Paying Agent) of the Last Reported Sale Prices of the Capital Stock Distributed Assets or similar Equity Interests Securities so distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-OffCommon Stock. Such adjustment shall become effective immediately prior after the 10th consecutive Trading Day commencing on and including the first Trading Day after the "ex distribution date" with respect to 9:00 a.m., New York City time, on the Exdistribution.
(ii) In the event of a Spin-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or madeoff, the Conversion Rate shall be readjusted, effective as of adjusted so that the date the Company publicly announces not to make such dividend or distribution, to be same shall equal the Conversion Rate that would then be determined by dividing the Conversion Rate in effect if immediately prior to the close of business on the record date fixed for the determination of holders of Common Stock entitled to receive such dividend distribution by a fraction of which (A) the numerator shall be the Spin-off Market Price per share of the Common Stock and (B) the denominator shall be (x) the Spin-off Market Price per share of the Common Stock plus (y) the Fair Market Value of the portion of those Shares of Capital Stock or distribution had not been declaredsimilar Equity Interests so distributed applicable to one share of Common Stock on such record date. Notwithstanding the delivery requirements set forth under Section 12.02, if an The adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for set forth in this Section 12.03(d9.6(c). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(f) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”) (prior to giving effect to such tender or exchange offer); OS’ = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tende
Appears in 1 contract
Sources: Indenture (Halliburton Co)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company subject to adjustment from time to time, without duplication, as follows:
(a) If In case the Company issues Ordinary Shares to all shall (i) pay a dividend, or substantially all holders make a distribution on its Common Stock, payable exclusively in shares of Ordinary Shares as Common Stock or other Capital Stock of the Company; (ii) subdivide or split its outstanding Common Stock into a dividend greater number of shares; (iii) combine or distributionreclassify its outstanding Common Stock into a smaller number of shares; or (iv) issue by reclassification of the shares of Common Stock any shares of the Company’s Capital Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m.immediately prior to the record date or effective date, New York City timeas the case may be, on for the Trading Day immediately preceding adjustment pursuant to this Section 9.8(a) as described below, shall be adjusted so that the Ex-Dividend Date Holder of any Notes thereafter surrendered for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; OS0 = conversion shall be entitled to receive the number of Ordinary Shares outstanding at 5:00 p.m.shares of Common Stock and/or Capital Stock which such Holder would have owned or have been entitled to receive after the happening of any of the events described above had such Notes been converted immediately prior to such record date or effective date, New York City time, on as the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distributioncase may be. Such An adjustment made pursuant to this Section 9.8(a) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for such applicable record date in the case of a dividend or distributiondistribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or reclassification of the Common Stock. If any dividend or distribution of the type described in this Section 12.03(aclause (i) above is declared but not so paid or made, the Conversion Rate shall again be adjustedimmediately readjusted, effective as of the date the Company publicly announces Board of Directors determines not to make pursue such dividend or distributionaction, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If any subdivision or split, combination or reclassification or issuance of the type described in clauses (ii) through (iv) of this Section 9.8(a) is not so made, the Conversion Rate shall again be immediately readjusted, effective as of the date the Board of Directors determines not to pursue such action, to the Conversion Rate that would then be in effect if such subdivision or split, combination or reclassification or issuance had not been declared.
(b) If In case the Company effects at any time or from time to time after the issuance of the Notes shall issue rights or warrants to all or substantially all holders of the Common Stock entitling them to subscribe for or purchase Common Stock at a subdivision price per share less (or combination having a conversion price per share less) than the Current Market Price per share of Ordinary SharesCommon Stock, the Conversion Rate will shall be adjusted based on so that the following formula: where, CR0 = same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the record date fixed for determination of stockholders entitled to receive such rights or warrants (prior to any adjustment in accordance with this Section 9.8(b)) by a fraction of which (i) the numerator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at 5:00 p.m., New York City time, the Current Market Price per share of Common Stock on the earlier of such record date and the Trading Day immediately preceding the effective ex date for such issuance of such subdivision rights or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combinationwarrants. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately prior to 9:00 a.m., New York City time, after the opening of business on the day following the record date on which such split or combination becomes effective.
(c) If for the Company issues determination of stockholders entitled to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to receive such rights or warrants; and Z = . To the number extent that shares of Ordinary Shares equal Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall immediately be readjusted to the quotient Conversion Rate which would then be in effect had the adjustments made upon the issuance of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending been made on the Trading Day basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be immediately preceding readjusted to be the Conversion Rate which would then be in effect if such record date for the determination of shareholders entitled to receive such issuance was first publicly announcedrights or warrants had not been fixed. For purposes of this Section 12.03(c), in In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Pricessuch Current Market Price, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereofwarrants, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distributionDirectors.
(dc) If In case the Company distributes shares of Capital Stockshall, evidences of its indebtedness by dividend or other assetsin a merger, including securitiesamalgamation or consolidation or otherwise, of the Company distribute to all or substantially all the holders of the Ordinary SharesCommon Stock any evidences of Indebtedness, excluding:
shares of Capital Stock of any class or series, other securities, cash or assets (excluding (i) any dividends dividend, distribution or distributions issuance covered by those referred to in Section 12.03(a9.8(a) above;
or 9.8(b) hereof, (ii) shares delivered any dividend or distribution paid exclusively in connection with subdivisions of Ordinary Shares cash referred to in Section 12.03(b9.8(d) above;
hereof or (iii) rights and warrants referred to in Section 12.03(c) above;
(iv) any dividend or distribution that constitutes a Spin-Offs Off which is covered by Section 9.8(e) hereof), or rights or warrants to which subscribe for or purchase any of its securities (including the provisions set forth below in this Section 12.03(d) shall apply;
(v) distribution of rights to all holders of Common Stock pursuant to a stockholders rights plan or the detachment of such rights under the terms of such stockholder rights plan but excluding those rights or warrants referred to in Section 9.8(b)) (any of the foregoing hereinafter in this Section 12.03(d9.8(c) below (to called the extent and as specified therein“Distributed Assets”); and
(vi) dividends or distributions referred to , then in Section 12.03(e) below. then each such case the Conversion Rate will shall be adjusted based on so that the following formula: where, CR0 = same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Trading Day immediately preceding record date fixed for determination of stockholders entitled to receive such distribution by a fraction of which (A) the Ex-Dividend Date for such distribution; CR’ = numerator shall be the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average Current Market Price per share of the Last Reported Sale Prices Common Stock and (B) the denominator shall be (1) the Current Market Price per share of Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = Common Stock less (2) the Fair Market Value on such record date (as determined in good faith by the Board of Directors Directors, whose determination shall be conclusive evidence of such Fair Market Value, and described in a certificate filed with the Trustee and the Paying Agent) of the Company) on the Ex-Dividend Date for such distribution portion of the shares Distributed Assets so distributed applicable to one share of Capital Common Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date record date for the determination of stockholders entitled to receive such distribution; provided, however, that, if (i) the Fair Market Value of the portion of the Distributed Assets so distributed applicable distribution. If “FMV” (as defined above) to one share of Common Stock is equal to or greater than “SP0” the Current Market Price of the Common Stock or (as defined above)ii) the Current Market Price of the Common Stock is greater than the Fair Market Value per share of such Distributed Assets by less than $1.00, other than in respect to a Public Spin-Offthen, in lieu of the adjustment described provided in this Section 12.03(d9.8(c), adequate provision shall be made so that each Holder of Notes shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversionthe shares of Common Stock, the kind and amount of assets (including cash)assets, shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s debt securities, as applicable, that such or rights or warrants comprising the Distributed Assets the Holder would have received if had such Holder had converted such Notes immediately prior to the record date for determining the shareholders determination of stockholders entitled to receive such distribution. With respect In the event that such distribution is not so paid or made, the Conversion Rate shall again be adjusted to an adjustment pursuant to this Section 12.03(dthe Conversion Rate which would then be in effect if such distribution had not been declared.
(d) where there has been a payment of a In case the Company shall make any distributions, by dividend or other distribution on the Ordinary Shares consists otherwise, consisting exclusively of cash to all or substantially all holders of outstanding shares of Capital Stock of any class or seriesCommon Stock, or similar Equity Interestthen, and in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Marketeach such case, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, the close of business on the Ex-Dividend Date record date fixed for the determination of holders of Common Stock entitled to receive such distribution by a fraction of which (A) the numerator shall be the Current Market Price per share of the Common Stock and (B) the denominator shall be (1) the Current Market Price per share of Common Stock minus (2) the amount per share of such distributions (appropriately adjusted from time to time for any stock dividends on or subdivisions or combination of Common Stock); provided, however, that if (i) the per share amount of such distribution will equals or exceeds the Current Market Price of the Common Stock or (ii) the Current Market Price of the Common Stock exceeds the per share amount of such distribution by less than $1.00, in lieu of the foregoing adjustment, adequate provision shall be increased based on made so that each Holder of a Note shall have the following formula: whereright to receive upon conversion, CR0 = such dividend or distribution such Holder would have received had such Holder converted each Note immediately prior to the record date for the determination of stockholders entitled to receive the distribution.
(e) In the event that the Company makes any distribution to all holders of Common Stock that constitutes a Spin-Off, the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Trading Day immediately preceding record date fixed for the Exdetermination of holders of Common Stock entitled to receive such distribution by a fraction of which (i) the numerator shall be the Spin-Dividend Date for Off Market Price per share of the Common Stock on such distribution; CR’ = record date plus the Spin-Off Market Price per Equity Interest of the Subsidiary or other business unit of the Company on such record date applicable to each share of Common Stock and (ii) the denominator shall be the Spin-Off Market Price per share of the Common Stock. The adjustment to the Conversion Rate set forth in effect on this Section 9.8(e) will occur at the Ex-Dividend Date for such distribution; FMV0 = earlier of (1) the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive 10th Trading Day period commencing onfrom, and including, the effective date of the Spin-Off; Off and MP0 = (2) the average date of the Last Reported Sale Prices Initial Public Offering of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of securities being distributed in the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to that Initial Public Offering is effected simultaneously with the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversionSpin-Off; provided, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d)however, rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances)that, which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): if (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence Spin-Off Market Price per Equity Interest of the earliest Trigger Event, whereupon such rights and warrants shall be deemed Subsidiary so distributed applicable to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per one share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) Common Stock is equal to or greater than “SP0” the Current Market Price of the Common Stock or (as defined above)ii) the Current Market Price of the Common Stock is greater than the Spin-Off Market price per Equity Interest of the Subsidiary by less than $1.00, in lieu of the adjustment described in this Section 12.03(e)foregoing adjustment, adequate provision shall be made so that each Holder of Notes a Note shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such distribution such Holder would have received if had such Holder had converted such Notes each Note immediately prior to the record date for determining the shareholders determination of stockholders entitled to receive such dividend or the distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(f) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to In case a tender offer or exchange offer made by the Company or any Subsidiary shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of its Subsidiaries for all or any portion consideration per share of the Ordinary Shares, to the extent that the Common Stock having a Fair Market Value (as determined below) in good faith by the Company’s Board of Directors, whose determination shall be conclusive and described in a resolution of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price Board of Ordinary Shares on the Trading Day immediately after Directors) that as of the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer time (the “Expiration DateTime”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) exceeds the Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate by a fraction,
(i) the numerator of which shall be the sum of (x) the Fair Market Value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the “Purchased Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) at the Expiration Time and the Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time”, and
(ii) the denominator of which shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, such adjustment to become effective immediately prior to giving effect the opening of business on the day following the Expiration Time. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer); OS’ = , but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again immediately be readjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made.
(g) Upon conversion of the Notes, the Holders shall receive, if they receive shares of Common Stock, in addition to the Common Stock issuable upon such conversion, the rights issued under any shareholder rights plan the Company implements (notwithstanding the occurrence of an event causing such rights to separate from the Common Stock at or prior to the time of conversion) unless, prior to conversion, the rights have expired, terminated or been redeemed or exchanged in accordance with the rights plan. If, and only if, the Holders of Notes receive rights under such shareholder rights plans as described in the preceding sentence upon conversion of their Notes, then no other adjustment pursuant to this Section 9.8 shall be made in connection with such shareholder rights plans.
(h) For purposes of this Section 9.8, the number of Ordinary Shares shares of Common Stock at any time outstanding immediately after shall not include shares held in the Expiration Time (after giving effect solely to such tendetreasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
Appears in 1 contract
Sources: Indenture (Aar Corp)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company as followsdescribed below, except that the Company will not make any adjustments to the Conversion Rate if Holders of the Securities participate (as a result of holding the Securities, and at the same time as holders of the Common Stock participate) in any of the transactions described in this Section 11.02 as if such Holders of the Securities held a number of shares of the Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holders, without having to convert their Securities:
(a) If the Company issues Ordinary Shares to all or substantially all holders shares of Ordinary Shares Common Stock as a dividend or distributiondistribution on shares of the Common Stock, or effects a share split or share combination, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for of such dividend or distribution; , or the effective date of such share split or share combination, as applicable CR’ ' = the Conversion Rate in effect on the immediately after such Ex-Dividend Date for such dividend or distribution; effective date, as applicable OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the prior to such Ex-Dividend Date for such dividend or distribution; and effective date, as applicable OS’ ' = the number of Ordinary Shares that would be shares of Common Stock outstanding immediately afterprior to such Ex-Dividend Date or effective date, and solely as a result ofapplicable, after giving pro forma effect to such dividend dividend, distribution, share split or distribution. share combination Such adjustment shall become effective immediately prior to after 9:00 a.m., New York City time, on the Ex-Dividend Business Day following the Record Date for such dividend or distribution, or the date fixed for determination for such share split or share combination. The Company will not pay any dividend or make any distribution on shares of Common Stock held in treasury by the Company. If any dividend or distribution of the type described in this Section 12.03(a11.02(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company effects distributes to holders of all or substantially all the Common Stock any rights or warrants entitling them for a subdivision period of not more than 60 calendar days to subscribe for or combination purchase shares of Ordinary SharesCommon Stock at a price per share less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading-Day period ending on the Trading Day immediately preceding the date of announcement of such distribution, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; distribution CR’ ' = the Conversion Rate in effect on the immediately after such Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the after such Ex-Dividend Date for such issuance; Y X = the total number of Ordinary Shares shares of Common Stock issuable pursuant to such rights or warrants; and Z warrants Y = the number of Ordinary Shares shares of Common Stock equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the Common Stock over the 10 consecutive Trading Trading-Day period ending on the Trading Day immediately preceding the date of announcement of the distribution of such rights or warrants Such adjustment shall be successively made whenever any such rights or warrants are issued and shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the date fixed for such determination. The Company shall not issue any such rights, options or warrants in respect of shares of Common Stock held in treasury by the Company. To the extent that shares of Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance was first publicly announcedof such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. For purposes If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such date fixed for the determination of this Section 12.03(c), in stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable such Last Reported Sale PricesPrice, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Company’s Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distributionDirectors.
(dc) If the Company distributes shares of Capital Stockcapital stock of the Company, evidences of its indebtedness or other assets, including securities, assets or property of the Company to holders of all or substantially all the holders of the Ordinary SharesCommon Stock, excluding:
(i) any dividends or distributions and rights or warrants referred to in Section 12.03(aclause (a) or (b) above;
(ii) shares delivered dividends or distributions paid exclusively in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;cash; and
(iii) rights and warrants referred as described below in this subsection (c) with respect to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such distribution; distribution CR’ ' = the Conversion Rate in effect on the immediately after such Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares the Common Stock over the 10 consecutive Trading Trading-Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and distribution FMV = the Fair Market Value (as determined by the Company’s Board of Directors of the CompanyDirectors) on the Ex-Dividend Date for such distribution of the shares of Capital Stockcapital stock, evidences of indebtedness, assets or assets, including securities, so distributed, expressed as an amount per Ordinary Shareproperty distributed with respect to each outstanding share of Common Stock on the Record Date for such distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date Business Day following the date fixed for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu determination of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders stockholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(dclause (c) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of Common Stock in shares of Capital Stock capital stock of any class or series, or similar Equity Interestequity interest, in of or relating to a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m.5:00 p.m., New York City time, on the Exeffective date of such Spin-Dividend Date of the distribution Off will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at immediately prior to 5:00 p.m., New York City time, on the Trading Day immediately preceding effective date of the ExSpin-Dividend Date for such distribution; Off CR’ ' = the Conversion Rate in effect on immediately after the Exeffective date of the Spin-Dividend Date for such distribution; Off FMV0 = the average of the Last Reported Sale Prices of the Capital Stock capital stock or similar Equity Interests equity interest distributed to holders Holders of Ordinary Shares Common Stock applicable to one share of Ordinary Shares during Common Stock over the first 10 consecutive Trading Trading-Day period commencing onfrom, and including, the effective date of the Spin-Off; and Off MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during Common Stock over the first 10 consecutive Trading Trading-Day period commencing onfrom, and including, the effective date of the Spin-Off. Such adjustment shall become occur on the tenth Trading Day from, and including, the effective date of the Spin-Off and shall be applied on a retroactive basis from, and including, the effective date of the Spin-Off; provided that in respect of any conversion occurring prior to the effective date of the Spin-Off with respect to which the related Observation Period would conclude during the 10 Trading Days from, and including, the effective date of any Spin-Off, references with respect to the Spin-Off to the 10 consecutive Trading-Day period shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the last day of the related Observation Period in determining the applicable Conversion Rate; provided further that in respect of any conversion occurring prior to the effective date of the Spin-Off with respect to which the related Observation Period would conclude during the three Trading Days from, and including, the effective date of such Spin-Off, references to the 10 consecutive Trading-Day period shall be deemed replaced with a three consecutive Trading-Day period with such adjustment to the Conversion Rate being applied on a retroactive basis from, and including, the effective date of the Spin-Off.
(i) If any regular, quarterly cash dividend or distribution made to the holders of all or substantially all of the Common Stock is in excess of $0.10 per share (the “Initial Dividend Threshold”), the Conversion Rate will be adjusted based on the following formulas: where, CR0 = the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If any dividend or distribution CR' = the Conversion Rate in effect immediately after the Ex-Dividend Date for such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, SP0 = the Conversion Rate shall be readjusted, effective as Last Reported Sale Price of the date Common Stock on the Company publicly announces not to make such dividend or distribution, to be Trading Day immediately preceding the Conversion Rate that would then be in effect if Ex-Dividend Date for such dividend or distribution had not been declaredC = the amount in cash per share the Company distributes to holders of Common Stock in excess of the Initial Dividend Threshold. Notwithstanding the delivery requirements set forth under Section 12.02, if an The Initial Dividend Threshold is subject to adjustment in a manner inversely proportional to adjustments to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes Rate; provided that have been tendered for conversion, delivery of the related conversion consideration no adjustment will be delayed made to the extent necessary in order to complete the calculations provided Initial Dividend Threshold for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no any adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, clause (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrantsd)(i), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(eii) If any dividends or other distributions by the Company consisting exclusively pays any cash dividend or distribution that is not a regular, quarterly cash dividend or distribution to holders of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company)Common Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the Ex-Dividend Date for such dividend or distribution CR' = the Conversion Rate in effect immediately after the Ex-Dividend Date for such dividend or distribution SP0 = the Last Reported Sale Prices of the Company’s Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and distribution C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes distributed to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declaredCommon Stock.
(fe) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to makes a payment in respect of a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary SharesCommon Stock, to the extent that the Fair Market Value (as determined below) of the cash and value of any other consideration included in the payment per Ordinary Share, share of Common Stock exceeds the Last reported Reported Sale Price of Ordinary Shares the Common Stock on the Trading Day immediately after next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (such last date, the “Expiration DateTime”), as it may be amended, the Conversion Rate will be adjusted increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Expiration Date; effective date of the adjustment CR’ ' = the Conversion Rate in effect on immediately after the Trading Day immediately following effective date of the Expiration Date; adjustment AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and any other consideration (as determined by the Company’s Board of Directors) paid or payable for the Ordinary Shares validly tendered shares accepted for purchase or exchanged and not withdrawn as of the Expiration Date; exchange in such tender or exchange offer OS0 = the number of Ordinary Shares shares of Common Stock outstanding immediately before prior to the last time tenders or exchanges may be made pursuant to date such tender or exchange offer expires OS' = the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (the “Expiration Time”) (prior to after giving effect to the reduction of shares accepted for purchase or exchange in such tender or exchange offer); OS’ ) SP' = the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading-Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires. Such adjustment will occur on the tenth Trading Day from, and including, the Trading Day next succeeding the date such tender or exchange offer expires and shall be applied on a retroactive basis from, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that in respect of any conversion occurring prior to the date such tender or exchange offer expires with respect to which the related Observation Period would conclude during the 10 Trading Days from, and including, the Trading Day next succeeding the date such tender or exchange offer expires, references with respect to the tender or exchange offer to the 10 consecutive Trading-Day period shall be deemed replaced with such lesser number of Ordinary Shares Trading Days as have elapsed between the Trading Day next succeeding the date such tender or exchange offer expires and the last day of the related Observation Period in determining the applicable Conversion Rate; provided further that in respect of any conversion occurring prior to the date such tender or exchange offer expires with respect to which the related Observation Period would conclude during the three Trading Days from, and including, the Trading Day next succeeding the date such tender or exchange offer expires, references to the 10 consecutive Trading-Day period shall be deemed replaced with a three consecutive Trading-Day period with such adjustment to the Conversion Rate being applied on a retroactive basis from, and including, the Trading Day next succeeding the date such tender or exchange offer expires. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made.
(f) The Company may (but is not required to) increase the Conversion Rate to avoid or diminish income tax to holders of Common Stock or rights to purchase Common Stock in connection with a dividend or distribution of shares (or rights to acquire shares) or any similar event treated as such for income tax purposes.
(g) To the extent permitted by applicable law and the rules of any stock exchange or market upon which the Common Stock is listed or admitted for trading, the Company may increase the Conversion Rate by any amount for a period of at least 20 days if the Company’s Board of Directors determines that such increase would be in the best interest of the Company, which determination shall be conclusive.
(h) Notwithstanding the foregoing provisions of this Section 11.02, the applicable Conversion Rate need not be adjusted:
(i) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the securities of the Company and the investment of additional optional amounts in shares of Common Stock under any plan;
(ii) upon the issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Company or any of its Subsidiaries;
(iii) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security not described in clause (ii) above and outstanding immediately after as of the Expiration Time Issue Date;
(after giving effect solely iv) for a change in the par value of the Common Stock; or
(v) for accrued and unpaid Interest (including any Additional Interest).
(i) All calculations under this Section 11.02 shall be made by the Company and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of a share, as the case may be. The Company will not be required to adjust the Conversion Rate unless the adjustment would result in a change in the Conversion Rate of at least 1%. However, the Company is required to carry forward any adjustments to the Conversion Rate that are less than 1% that it elects not to make and to make such tendeadjustments upon the earlier of (i) the first day of the Observation Period in connection with any conversion of the Securities or (ii) such time as all adjustments that have not been ma
Appears in 1 contract
Sources: Indenture (Newmont Mining Corp /De/)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company subject to adjustment from time to time, without duplication, as follows:
(a) If In case the Company issues Ordinary Shares to all shall (i) pay a dividend, or substantially all holders make a distribution on its Common Stock, payable exclusively in shares of Ordinary Shares as Common Stock or other Capital Stock of the Company; (ii) subdivide or split its outstanding Common Stock into a dividend greater number of shares; (iii) combine or distributionreclassify its outstanding Common Stock into a smaller number of shares; or (iv) issue by reclassification of the shares of Common Stock any shares of the Company’s Capital Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m.immediately prior to the record date or effective date, New York City timeas the case may be, on for the Trading Day immediately preceding adjustment pursuant to this Section 9.7(a) as described below, shall be adjusted so that the Ex-Dividend Date Holder of any Notes thereafter surrendered for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; OS0 = conversion shall be entitled to receive the number of Ordinary Shares outstanding at 5:00 p.m.shares of Common Stock and/or Capital Stock which such Holder would have owned or have been entitled to receive after the happening of any of the events described above had such Notes been converted immediately prior to such record date or effective date, New York City time, on as the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distributioncase may be. Such An adjustment made pursuant to this Section 9.7(a) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for such applicable record date in the case of a dividend or distributiondistribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or reclassification of the Common Stock. If any dividend or distribution of the type described in this Section 12.03(aclause (i) above is declared but not so paid or made, the Conversion Rate shall again be adjustedimmediately readjusted, effective as of the date the Company publicly announces Board of Directors determines not to make pursue such dividend or distributionaction, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If any subdivision or split, combination or reclassification or issuance of the type described in clauses (ii) through (iv) of this Section 9.7(a) is not so made, the Conversion Rate shall again be immediately readjusted, effective as of the date the Board of Directors determines not to pursue such action, to the Conversion Rate that would then be in effect if such subdivision or split, combination or reclassification or issuance had not been declared.
(b) If In case the Company effects at any time or from time to time after the issuance of the Notes shall issue rights or warrants to all or substantially all holders of the Common Stock entitling them to purchase Common Stock for a subdivision period of 60 days from the date of issuance of such rights or combination warrants at a price per share less (or having a conversion price per share less) than the Current Market Price per share of Ordinary SharesCommon Stock, the Conversion Rate will shall be adjusted based on so that the following formula: where, CR0 = same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the record date fixed for determination of stockholders entitled to receive such rights or warrants (prior to any adjustment in accordance with this Section 9.7(b)) by a fraction of which (i) the numerator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at 5:00 p.m., New York City time, the Current Market Price per share of Common Stock on the earlier of such record date and the Trading Day immediately preceding the effective ex date for such issuance of such subdivision rights or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combinationwarrants. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately prior to 9:00 a.m., New York City time, after the opening of business on the day following the record date on which such split or combination becomes effective.
(c) If for the Company issues determination of stockholders entitled to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to receive such rights or warrants; and Z = . To the number extent that shares of Ordinary Shares equal Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall immediately be readjusted to the quotient Conversion Rate which would then be in effect had the adjustments made upon the issuance of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending been made on the Trading Day basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be immediately preceding readjusted to be the Conversion Rate which would then be in effect if such record date for the determination of shareholders entitled to receive such issuance was first publicly announcedrights or warrants had not been fixed. For purposes of this Section 12.03(c), in In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Pricessuch Current Market Price, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereofwarrants, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distributionDirectors.
(dc) If In case the Company distributes shares of Capital Stockshall, evidences of its indebtedness by dividend or other assetsin a merger, including securitiesamalgamation or consolidation or otherwise, of the Company distribute to all or substantially all the holders of the Ordinary SharesCommon Stock any evidences of Indebtedness, excluding:
shares of Capital Stock of any class or series, other securities, cash or assets (excluding (i) any dividends dividend, distribution or distributions issuance covered by those referred to in Section 12.03(a9.7(a) above;
or 9.7(b) hereof, (ii) shares delivered any dividend or distribution paid exclusively in connection with subdivisions of Ordinary Shares cash referred to in Section 12.03(b9.7(d), 9.7(f) above;
or 9.7(g) hereof or (iii) rights and warrants referred to in Section 12.03(c) above;
(iv) any dividend or distribution that constitutes a Spin-Offs Off which is covered by Section 9.7(e) hereof), or rights or warrants to which purchase any of its securities (including the provisions set forth below in this Section 12.03(d) shall apply;
(v) distribution of rights to all holders of Common Stock pursuant to a stockholders rights plan or the detachment of such rights under the terms of such stockholder rights plan but excluding those rights or warrants referred to in Section 9.7(b)) (any of the foregoing hereinafter in this Section 12.03(d9.7(c) below (to called the extent and as specified therein“Distributed Assets”); and
(vi) dividends or distributions referred to , then in Section 12.03(e) below. then each such case the Conversion Rate will shall be adjusted based on so that the following formula: where, CR0 = same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Trading Day immediately preceding day prior to the Exex-Dividend Date for dividend date of such distribution; CR’ = distribution by a fraction of which (A) the Conversion Rate in effect on numerator shall be the Ex-Dividend Date for such distribution; SP0 = the average Current Market Price per share of the Last Reported Sale Prices Common Stock and (B) the denominator shall be (1) the Current Market Price per share of Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = Common Stock less (2) the Fair Market Value on such record date (as determined in good faith by the Board of Directors Directors, whose determination shall be conclusive evidence of such Fair Market Value, and described in a certificate filed with the Trustee and the Paying Agent) of the Company) on the Ex-Dividend Date for such distribution portion of the shares Distributed Assets so distributed applicable to one share of Capital Common Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date record date for the determination of stockholders entitled to receive such distribution; provided, however, that, if (i) the Fair Market Value of the portion of the Distributed Assets so distributed applicable distribution. If “FMV” (as defined above) to one share of Common Stock is equal to or greater than “SP0” the Current Market Price of the Common Stock or (as defined above)ii) the Current Market Price of the Common Stock is greater than the Fair Market Value per share of such Distributed Assets by less than $1.00, other than in respect to a Public Spin-Offthen, in lieu of the adjustment described provided in this Section 12.03(d9.7(c), adequate provision shall be made so that each Holder of Notes shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversionthe shares of Common Stock, the kind and amount of assets (including cash)assets, shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s debt securities, as applicable, that such or rights or warrants comprising the Distributed Assets the Holder would have received if had such Holder had converted such Notes immediately prior to the record date for determining the shareholders determination of stockholders entitled to receive such distribution. With respect In the event that such distribution is not so paid or made, the Conversion Rate shall again be adjusted to an adjustment pursuant to this Section 12.03(dthe Conversion Rate which would then be in effect if such distribution had not been declared.
(d) where there has been a payment of a In case the Company shall make any distributions, by dividend or other distribution on the Ordinary Shares consists otherwise, consisting exclusively of cash to all or substantially all holders of outstanding shares of Capital Stock of any class or seriesCommon Stock, or similar Equity Interestthen, and in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Marketeach such case, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, the close of business on the Exday prior to the ex-Dividend Date dividend date of such distribution by a fraction of which (A) the numerator shall be the Current Market Price per share of the Common Stock and (B) the denominator shall be (1) the Current Market Price per share of Common Stock minus (2) the amount per share of such distributions (appropriately adjusted from time to time for any stock dividends on or subdivisions or combination of Common Stock); provided, however, that if (i) the per share amount of such distribution will equals or exceeds the Current Market Price of the Common Stock or (ii) the Current Market Price of the Common Stock exceeds the per share amount of such distribution by less than $1.00, in lieu of the foregoing adjustment, adequate provision shall be increased based on made so that each Holder of a Note shall have the following formula: whereright to receive upon conversion, CR0 = such dividend or distribution such Holder would have received had such Holder converted each Note immediately prior to the record date for the determination of stockholders entitled to receive the distribution. The new Conversion Rate shall take effect immediately after the record date fixed for determination of the Stockholders entitled to receive such distribution.
(e) In the event that the Company makes any distribution to all holders of Common Stock that constitutes a Spin-Off, the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Trading Day immediately preceding record date fixed for the Exdetermination of holders of Common Stock entitled to receive such distribution by a fraction of which (i) the numerator shall be the Spin-Dividend Date for Off Market Price per share of the Common Stock on such distribution; CR’ = record date plus the Spin-Off Market Price per Equity Interest of the Subsidiary or other business unit of the Company on such record date applicable to each share of Common Stock and (ii) the denominator shall be the Spin-Off Market Price per share of the Common Stock. The adjustment to the Conversion Rate set forth in effect on this Section 9.7(e) will occur at the Ex-Dividend Date for such distribution; FMV0 = earlier of (1) the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive 10th Trading Day period commencing onfrom, and including, the effective date of the Spin-Off; Off and MP0 = (2) the average date of the Last Reported Sale Prices Initial Public Offering of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of securities being distributed in the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to that Initial Public Offering is effected simultaneously with the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversionSpin-Off; provided, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d)however, rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances)that, which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): if (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence Spin-Off Market Price per Equity Interest of the earliest Trigger Event, whereupon such rights and warrants shall be deemed Subsidiary so distributed applicable to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per one share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) Common Stock is equal to or greater than “SP0” the Current Market Price of the Common Stock or (as defined above)ii) the Current Market Price of the Common Stock is greater than the Spin-Off Market price per Equity Interest of the Subsidiary by less than $1.00, in lieu of the adjustment described in this Section 12.03(e)foregoing adjustment, adequate provision shall be made so that each Holder of Notes a Note shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such distribution such Holder would have received if had such Holder had converted such Notes each Note immediately prior to the record date for determining the shareholders determination of stockholders entitled to receive such dividend or the distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(f) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to In case a tender offer or exchange offer made by the Company or any Subsidiary shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of its Subsidiaries for all or any portion consideration per share of the Ordinary Shares, to the extent that the Common Stock having a Fair Market Value (as determined below) in good faith by the Company’s Board of Directors, whose determination shall be conclusive and described in a resolution of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price Board of Ordinary Shares on the Trading Day immediately after Directors) that as of the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer time (the “Expiration DateTime”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended) exceeds the Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate by a fraction,
(i) the numerator of which shall be the sum of (x) the Fair Market Value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the “Purchased Shares”) and (y) the product of (a) the number of shares of Common Stock outstanding (less any Purchased Shares) at the Expiration Time and (b) the Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time”, and
(ii) the denominator of which shall be the number of shares of Common Stock outstanding (including any Purchased Shares) at the Expiration Time multiplied by the Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time, such adjustment to become effective immediately prior to giving effect the opening of business on the day following the Expiration Time. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again immediately be readjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made.
(g) In the event that the Company or any Subsidiary makes any payment in cash to repurchase Common Stocks, the consideration for which exceeded the average Closing Sale Prices of the Common Stock for the five consecutive Trading Days ending on the last date of such repurchase (such excess amount, the “Repurchase Premium”); OS’ = , and such repurchase (together with any other repurchases of Common Stock by the number Company or any Subsidiary concluded within 12 months of Ordinary Shares outstanding immediately after such repurchase, the Expiration Time consideration for which involved a Repurchase Premium) resulted in the payment by the Company or any Subsidiary of an aggregate consideration exceeding an amount equal to 10% of the Company’s Market Capitalization, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate by a fraction,
(after giving effect solely to such tendei) the numerator of which shall be the 9.7
Appears in 1 contract
Sources: Indenture (Saks Inc)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company as follows:
(ai) If New Charter shall, at any time or from time to time while any of the Company issues Ordinary Shares to all or substantially all holders Convertible Preferred Units are outstanding, issue shares of Ordinary Shares Class A Common Stock as a dividend or distributiondistribution on shares of the Class A Common Stock, or if New Charter effects a share split or share combination in respect of the Class A Common Stock, then the Conversion Rate will shall be adjusted based on the following formula: where, : CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the Close of Business on the Trading Day immediately preceding the Ex-Dividend Record Date for such dividend or distribution, or immediately prior to the effectiveness of such share split or combination, as applicable; CR’ CR1 = the new Conversion Rate in effect immediately after the Close of Business on the Ex-Dividend Record Date for such dividend or distribution, or immediately after the effectiveness of such share split or combination, as applicable; OS0 = the number of Ordinary Shares shares of Class A Common Stock outstanding at 5:00 p.m., New York City time, the Close of Business on the Trading Day immediately preceding the Ex-Dividend Record Date for such dividend or distribution, or at the effectiveness of such share split or share combination, as applicable, without giving effect to such dividend, distribution, share split or combination; and OS’ OS1 = the number of Ordinary Shares that would be shares of Class A Common Stock outstanding immediately after, and solely as a result of, such dividend or distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, at the Close of Business on the Ex-Dividend Record Date for such dividend or distribution, or at the effectiveness of such share split or share combination, as applicable, after giving effect to such dividend, distribution, share split or combination. Any adjustment made under this Section 3.3(c)(i) shall become effective immediately after the Close of Business on the Record Date for such dividend or distribution, or immediately after the effectiveness of such share split or share combination, as applicable. If any adjustment is made under this Section 3.3(c)(i) due to a dividend or distribution of the type described in this Section 12.03(a) that is declared but not so paid or made, the Conversion Rate shall again be adjustedimmediately readjusted, effective as of the date the Company publicly announces Board of Directors determines not to make pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(bii) If New Charter shall, at any time or from time to time while any of the Company effects Convertible Preferred Units are outstanding, distribute to all or substantially all holders of the outstanding shares of Class A Common Stock any options, rights or warrants entitling them for a subdivision period of not more than 60 calendar days from the Record Date of such distribution to subscribe for or combination purchase shares of Ordinary SharesClass A Common Stock at a price per share less than the VWAP for the Class A Common Stock for the ten (10) consecutive Trading Days ending on and including the date immediately preceding the Record Date of such distribution, the Conversion Rate will shall be adjusted based on the following formula: where, : CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the Close of Business on the Trading Day immediately preceding the effective date of Record Date for such subdivision or combinationdistribution; CR’ CR1 = the new Conversion Rate in effect immediately after the Close of Business on the effective date of Record Date for such subdivision or combinationdistribution; OS0 = the number of Ordinary Shares shares of Class A Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, the Close of Business on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Record Date for such issuancedistribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y X = the total number of Ordinary Shares shares of Class A Common Stock issuable pursuant to such options, rights or warrants; and Z Y = the number of Ordinary Shares shares of Class A Common Stock equal to the quotient of (xa) the aggregate price payable to exercise such options, rights or warrants divided by (yb) the average of VWAP for the Last Reported Sale Prices of Ordinary Shares during Class A Common Stock for the 10 ten (10) consecutive Trading Day period Days ending on and including the Trading Day immediately preceding the date Record Date of such issuance was first publicly announceddistribution. For purposes of Any increase made under this Section 12.03(c)3.3(c)(ii) shall be made successively whenever any such rights, in determining whether options or warrants are issued and shall become effective immediately after the Close of Business on the Record Date for such distribution. To the extent that shares of Class A Common Stock are not delivered pursuant to any such options, rights or warrants entitle prior to the Holders expiration or termination of such options, rights or warrants, the Conversion Rate shall be readjusted to subscribe for the Conversion Rate which would then be in effect had the adjustments made upon the distribution of such options, rights or purchase Ordinary Shares at less than warrants been made on the average basis of the applicable Last Reported Sale Prices, and in delivery of only the number of shares of Class A Common Stock actually delivered. In determining the aggregate exercise or conversion price payable for to exercise such Ordinary Sharesoptions, rights or warrants, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distributiongood faith.
(d) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
(i) any dividends or distributions referred to in Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred If New Charter, at any time or from time to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average time while any of the Last Reported Sale Prices of Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value (as determined by the Board of Directors of the Company) on the Ex-Dividend Date for such distribution of the shares of Capital StockConvertible Preferred Units are outstanding, evidences of indebtedness, shall pay or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) where there has been a payment of make a dividend or other distribution on the Ordinary Shares consists Class A Common Stock consisting of shares of Capital Stock of any class or series, or similar Equity Interestequity interest, in of or relating to a Subsidiary or other business unit of the Company that are, or when issued will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will shall be increased based on the following formula: where, : CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the Close of Business on the tenth (10th) Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing onfollowing, and including, the Trading Day following the effective date of the Spin-Off; and MP0 CR1 = the average new Conversion Rate in effect immediately after the Close of Business on the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive tenth (10th) Trading Day period commencing onimmediately following, and including, the Trading Day following the effective date of the Spin-Off; FMV = the VWAP of the Capital Stock or similar equity interest distributed to holders of Class A Common Stock for the ten (10) consecutive Trading Days commencing on and including the Trading Day following the effective date of the Spin-Off, multiplied by the number of shares of such Capital Stock or similar equity interest applicable to one such of Class A Common Stock; and SP1 = the VWAP of the Class A Common Stock for the ten (10) consecutive Trading Days commencing on and including the Trading Day following the effective date of the Spin-Off. Such The adjustment to the Conversion Rate under the preceding paragraph shall occur on the 10th Trading Day immediately following, and including, the Trading Day following the effective date of the Spin-Off; provided, that in respect of any conversion of Convertible Preferred Units between the effective date of the Spin-Off and the date of adjustment, references in this Section 3.3(c)(iii) to ten (10) consecutive Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day following the effective date of the Spin-Off to, and including, the relevant Conversion Date.
(iv) If New Charter, at any time or from time to time while any of the Convertible Preferred Units are outstanding, shall distribute to all or substantially all holders of Class A Common Stock any dividends payable exclusively in cash (other than dividends distributed in connection with any Common Tax Distributions), the Conversion Rate shall be adjusted based on the following formula: where: CR0 = the Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such distribution; CR1 = the new Conversion Rate in effect immediately after the Close of Business on the Record Date for such distribution; SP0 = the VWAP of the Class A Common Stock for the ten (10) consecutive Trading Days ending on and including the Trading Day immediately preceding the Record Date for such distribution; and C = the amount in cash per share of Class A Common Stock that New Charter distributes to holders of the Class A Common Stock. Any adjustment made under this Section 3.3(c)(iv) shall become effective immediately prior to 9:00 a.m., New York City time, after the Close of Business on the Ex-Dividend Record Date for such dividend or distribution. If any such dividend or distribution of the type described in this Section 12.03(d3.3(c)(iv) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Company publicly announces Board of Directors determines not to make pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements foregoing, if C as set forth under Section 12.02above is equal to or greater than SP0 as set forth above, if an adjustment then in lieu of the foregoing adjustment, the Company shall distribute to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period each holder of Convertible Preferred Units, in respect of Notes that each Convertible Preferred Unit held by such holder, on the date cash is distributed to holders of Class A Common Stock, but without requiring such holder to convert its Convertible Preferred Units, the amount of cash such holder would have been tendered received had such holder owned a number of shares of Class A Common Stock equal to the Per Unit Amount on the Record Date fixed for conversiondetermination for stockholders entitled to receive such cash distribution.
(v) If New Charter, delivery at any time or from time to time while any of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d)Convertible Preferred Units are outstanding, rights or warrants distributed by the Company shall distribute to all or substantially all holders of Ordinary Shares entitling the holders thereof Class A Common Stock shares of any class of Capital Stock of New Charter, evidences of its indebtedness, assets, property or rights or warrants to subscribe for acquire Capital Stock or purchase other securities, but excluding (A) dividends or distributions as to which an adjustment under Section 3.3(c)(i) or Section 3.3(c)(ii) shall apply, (B) dividends or distributions paid exclusively in cash (as to which the provisions set forth in Section 3.3(c)(iv) shall apply), (C) Spin-Offs (as to which the provisions set forth in Section 3.3(c)(iii) shall apply) and (D) dividends distributed in connection with any Common Tax Distributions (any of such shares of Capital Stock, indebtedness, assets, property or rights or warrants to acquire Capital Stock (either initially or under certain circumstancesother securities, hereinafter in this Section 3.3(c)(v) called the “Distributed Property”), which rights or warrantsthen, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with in each such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to case the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, : CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the Close of Business on the Trading Day immediately preceding the Ex-Dividend Record Date for such dividend or distribution; CR’ CR1 = the new Conversion Rate in effect immediately after the Close of Business on the Ex-Dividend Record Date for such dividend or distribution; SP0 = the average VWAP of the Last Reported Sale Prices of Class A Common Stock for the Ordinary Shares during the 10 ten (10) consecutive Trading Day period Days ending on, on and including, including the Trading Day immediately date preceding the Ex-Dividend Record Date for such dividend or distribution; and C FMV = (I) for cash dividends or distributions, the amount of cash distributed and (II) for other Distributed Property, the fair market value (as determined by the Board of Directors in cash per good faith) of the portion of Distributed Property, in each case, with respect to each outstanding share of Ordinary Shares that Class A Common Stock on the Company pays as a dividend or otherwise distributes to holders Record Date for such distribution. Any increase made under the portion of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e3.3(c)(v) shall become effective immediately prior to 9:00 a.m., New York City time, after the close of business on the Ex-Dividend Record Date for the applicable dividend or such distribution. If “C” (as defined above) such distribution is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not so paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not decreased to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if FMV as set forth above is equal to or greater than SP0 as set forth above (a “Liquidating Distribution”), then in lieu of the foregoing adjustment, the Company shall distribute to each holder of Convertible Preferred Units, in respect of each Convertible Preferred Unit held by such holder, on the date such Distributed Property is distributed to holders of Class A Common Stock, but without requiring such holder to convert its Convertible Preferred Units, the amount of Distributed Property such holder would have received had such holder owned a number of shares of Class A Common Stock equal to the Per Unit Amount on the Record Date fixed for determination for stockholders entitled to receive such Liquidating Distribution. If the Board of Directors determines the fair market value of any distribution for purposes of this Section 3.3(c)(v) by reference to the actual or when issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in calculating SP0 in the formula in this Section 3.3(c)(v). Any dividend or distribution to which this Section 3.3(c)(v) is applicable that also includes shares of Class A Common Stock, or options, rights or warrants to subscribe for or purchase shares of Class A Common Stock to which Section 3.3(c)(i) or Section 3.3(c)(ii) applies (or both) shall be deemed instead to be (A) a dividend or distribution of the evidences of indebtedness, assets or shares of Capital Stock other than such shares of Class A Common Stock or options, rights or warrants to which Section 3.3(c)(i) or Section 3.3(c)(ii) applies (and any Conversion Rate adjustment required by this Section 3.3(c)(v) with respect to such dividend or distribution shall then be made) immediately followed by (B) a dividend or distribution of such shares of Class A Common Stock or such options, rights or warrants to which Section 3.3(c)(i) or Section 3.3(c)(ii) applies (and any further Conversion Rate adjustment required by Section 3.3(c)(i) or Section 3.3(c)(ii) with respect to such dividend or distribution shall then be made), except (I) the Close of Business on the Record Date for the distribution under this Section 3.3(c)(v) shall be substituted for “the Close of Business on the Record Date for such dividend or distribution, or immediately prior to the effectiveness of such share split or share combination,” “the Close of Business on the Record Date for such dividend or distribution, or immediately after the effectiveness of such share split or share combination” and “the Close of Business on the Record Date for such distribution” within the meaning of Section 3.3(c)(i) and Section 3.3(c)(ii) hereof, respectively, and (II) any shares of Class A Common Stock included in such dividend or distribution shall not be deemed “outstanding immediately prior to the Close of Business on the Record Date for such dividend or distribution, or immediately prior to the effectiveness of such share split or combination” within the meaning of Section 3.3(c)(i) or “outstanding immediately prior to the Close of Business on the Record Date for such distribution” within the meaning of Section 3.3(c)(ii).
(fvi) If the Company New Charter or any of its Subsidiaries purchases Ordinary Shares pursuant Subsidiaries, at any time or from time to time while any of the Convertible Preferred Units are outstanding, shall make a payment to holders of Class A Common Stock in respect of a tender offer or exchange offer made by the Company or any New Charter for shares of its Subsidiaries for all or any portion of the Ordinary SharesClass A Common Stock, to the extent that the Fair Market Value cash and value (as determined belowby the Board of Directors in good faith) of the cash and any other consideration included in the payment per Ordinary Share, share of Class A Common Stock exceeds the Last reported Sale Price VWAP of Ordinary Shares the Class A Common Stock for the ten (10) consecutive Trading Days commencing on the Trading Day immediately after following the last date on which tenders or exchanges may could be validly made pursuant to such tender offer or exchange offer (such last date, the “Expiration Date”), as it may be amended, the Conversion Rate will shall be adjusted based on the following formula: where, : CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the Close of Business on the Expiration Date; CR’ = last Trading Day of the Conversion Rate in effect on ten (10) consecutive Trading Day period commencing on, and including, the Trading Day immediately following the Expiration Date; AC CR1 = the Fair Market Value new Conversion Rate in effect immediately after the Close of Business on the last Trading Day of the ten (10) consecutive Trading Day period commencing on, and including, the Trading Day immediately following the Expiration Date; FMV = the fair market value (as determined by the Board of Directors of the Companyin good faith) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable in such tender or exchange offer (up to any maximum amount specified in the terms of the tender or exchange offer) for the Ordinary Shares validly tendered all shares of Class A Common Stock that New Charter purchases in such tender or exchanged and not withdrawn exchange offer, such fair market value to be measured as of the expiration time of the tender or exchange offer (“Expiration DateTime”); OS0 = the number of Ordinary Shares shares of Class A Common Stock outstanding immediately before prior to the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”) (prior to giving effect to such tender or exchange offer); OS’ OS1 = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tendeshares of Class A Common Sto
Appears in 1 contract
Sources: Limited Liability Company Agreement (Charter Communications, Inc. /Mo/)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company as follows:described below, except that the Company shall not make any adjustments to the Conversion Rate if Holders of the Notes participate (as a result of holding the Notes, and at the same time as holders of the Common Stock participate) in any of the transactions described in this Section 5.02 as if such Holders of the Notes held a number of shares of the Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holders, without having to convert their Notes.
(a) If the Company issues Ordinary Shares to all or substantially all holders shares of Ordinary Shares Common Stock as a dividend or distributiondistribution on shares of Common Stock, or if the Company effects a share split or share combination, the Conversion Rate will shall be adjusted based on the following formula: where, CR0 = the Conversion Rate conversion rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Trading Day Record Date for such dividend or distribution or immediately preceding prior to the open of business on the effective date of such share split or combination, as applicable; CR1 = the conversion rate in effect immediately after the close of business on such Record Date or immediately after the open of business on such effective date, as applicable; OS0 = the number of shares of Common Stock outstanding immediately prior to the close of business on such Record Date or immediately prior to the open of business on such effective date, as applicable; and OS1 = the number of shares of Common Stock outstanding immediately prior to such Ex-Dividend Date or effective date, as applicable, after giving pro forma effect to such dividend, distribution, share split or share combination. Any adjustment made under this Section 5.02(a) shall become effective immediately after the close of business on the Record Date for such dividend or distribution; CR’ = , or immediately after the Conversion Rate in effect on open of business of the Ex-Dividend Date effective date for such share split or share combination, as applicable. The Company shall not pay any dividend or distribution; OS0 = make any distribution on shares of Common Stock held in treasury by the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such dividend or distributionCompany. If any dividend or distribution of the type described in this Section 12.03(a5.02(a) is declared but not so paid or made, the Conversion Rate shall again be adjustedimmediately readjusted, effective as of the date the Company publicly announces Company’s Board of Directors determines not to make pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company effects distributes to holders of all or substantially all the Common Stock any rights or warrants entitling them for a subdivision period of not more than 45 calendar days to subscribe for or combination purchase shares of Ordinary SharesCommon Stock at a price per share less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading-Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such distribution, the Conversion Rate will shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Trading Day immediately preceding the effective date of Record Date for such subdivision or combinationdistribution; CR’ CR1 = the Conversion Rate in effect immediately after the close of business on the effective date of such subdivision or combinationRecord Date; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, immediately prior to the close of business on such Record Date; X = the Trading Day immediately preceding the effective date total number of shares of Common Stock issuable pursuant to such subdivision rights or combinationwarrants; and OS’ Y = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, shares of Common Stock equal to the aggregate price payable to exercise such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than divided by the average of the Last Reported Sale Prices of the Ordinary Shares during Common Stock over the 10 consecutive Trading Trading-Day period ending on on, and including, the Trading Day immediately preceding the date of announcement of the distribution of such rights or warrants. Any adjustment made under this Section 5.02(b) shall be successively made whenever any such rights, options or warrants are issued and shall become effective immediately after the close of business on the Record Date for such issuance. The Company shall not issue any such rights, options or warrants in respect of shares of Common Stock held in treasury by the Company. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance was first publicly announcedhad not occurred. In determining whether any rights, options or warrants entitle the Holders to subscribe for or purchase shares of Common Stock at less than such average Last Reported Sale Prices for the 10 consecutive trading-day period ending on, and including the Trading Day immediately preceding the date of announcement for such issuance, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Company’s Board of Directors.
(c) If the Company distributes shares of its capital stock, evidences of its indebtedness or other assets or property of the Company or rights or warrants to acquire the Company’s capital stock or other securities to holders of all or substantially all the Common Stock, excluding:
(i) dividends or distributions and rights or warrants referred to in Section 5.02(a) or (b) above;
(ii) dividends or distributions paid exclusively in cash; and
(iii) as described below in this Section 5.02(c) with respect to Spin-Offs (as defined below), then the Conversion Rate will shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Trading Day immediately preceding the Ex-Dividend Record Date for such issuancedistribution; CR’ CR1 = the Conversion Rate in effect immediately after the close of business on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to such rights or warrants; and Z = the number of Ordinary Shares equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced. For purposes of this Section 12.03(c), in determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable for such Ordinary Shares, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution.
(d) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
(i) any dividends or distributions referred to in Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distributionRecord Date; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares Common Stock over the 10 consecutive Trading Trading-Day period ending on on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value (as determined by the Company’s Board of Directors of the CompanyDirectors) on the Ex-Dividend Date for such distribution of the shares of Capital Stockcapital stock, evidences of indebtedness, or assets, including securitiesproperty, so distributed, expressed as an amount per Ordinary Sharerights or warrants distributed with respect to each outstanding share of Common Stock on the Record Date for such distribution. Such Any adjustment made under this Section 5.02(c) shall become effective immediately prior to 9:00 a.m., New York City time, after the close of business on the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of shares of Capital Stock of any class or series, or similar Equity Interest, in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Record Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not so paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, decreased to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding If the delivery requirements set forth under Section 12.02, if an adjustment to Company’s Board of Directors determines the Conversion Rate is required pursuant to this Section 12.03(d) during Fair Market Value of any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed distribution for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d5.02(c) and no adjustment by reference to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if actual or when-issued trading market for any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then it will in doing so consider the date of prices in such market over the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth same period used in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of computing the Last Reported Sale Prices Price of the Ordinary Shares during Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution. Notwithstanding the foregoing, if the Fair Market Value of any distribution for purposes of this Section 5.02(c) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase, each Holder shall receive, in respect of each $1,000 principal amount of Notes, at the same time and upon the same terms as holders of the Common Stock, the amount and kind of the Company’s capital stock or other securities that such Holder would have received if such Holder owned a number of shares of the Common Stock equal to the Conversion Rate in effect on the Record Date for the distribution. With respect to an adjustment pursuant to this Section 5.02(c) where there has been a payment of a dividend or other distribution on the Common Stock in shares of capital stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit where such capital stock or similar equity interest is listed or quoted (or will be listed or quoted upon consummation of the dividend or distribution) on a U.S. national or regional securities exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the end of the valuation period (as defined below); CR1 = the Conversion Rate in effect immediately after the end of the valuation period (as defined below); FMV0 = the average of the Last Reported Sale Prices of the capital stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock (determined for purposes of the definition of Last Reported Sale Price as if such capital stock or similar equity interest were Common Stock) over the first 10 consecutive Trading-Day period beginning on, and including, the Ex-Dividend Date for the Spin- Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices of Common Stock over the Valuation Period. Such adjustment shall be determined on the last Trading Day of the Valuation Period but will be given effect immediately after the open of business on the Ex-Dividend Date for the Spin-Off; provided that, if the relevant Conversion Date occurs during the Valuation Period, the reference to “10” in the in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date for such Spin-Off and such Conversion Date in determining the Conversion Rate.
(d) If any cash dividend or distribution is made to the holders of all or substantially all of the Common Stock other than a regular, quarterly cash dividend that does not exceed $0.08 per share (the “Initial Dividend Threshold”), the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the close of business on the Record Date for such dividend or distribution; CR1 = the Conversion Rate in effect immediately after the close of business on the Record Date for such dividend or distribution; SP0 = the Last Reported Sale Price of Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; T = the Initial Dividend Threshold; provided that if the dividend or distribution is not a regular, quarterly cash dividend, the Initial Dividend Threshold will be deemed to be zero; and C = the amount in cash per share of Ordinary Shares that distributed by the Company pays as a dividend or otherwise distributes to holders of Ordinary SharesCommon Stock. An The Initial Dividend Threshold shall be concurrently adjusted at any time the Conversion Rate is adjusted in a manner inversely proportional to adjustments to the Conversion Rate; provided that no adjustment shall be made to the Initial Dividend Threshold for any adjustment made to the Conversion Rate made pursuant to under this Section 12.03(e) 5.02(d). Such increase shall become effective immediately prior to 9:00 a.m., New York City time, after the close of business on the Ex-Dividend Record Date for the applicable such dividend or distribution. If such dividend or distribution is not so paid, the Conversion Rate shall be decreased to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, in the event the Company declares or pays more than one dividend during the 90 days preceding the Stated Maturity Date, no such additional dividend shall constitute a regular quarterly dividend. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e)foregoing increase, each Holder shall receive, for each $1,000 principal amount of Notes shall be entitled to receive Notes, at the same time and upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversionthe same terms as holders of the Common Stock, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior owned a number of shares of Common Stock equal to the record date Conversion Rate on the Record Date for determining the shareholders entitled to receive such cash dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(fe) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to makes a payment in respect of a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary SharesCommon Stock, to the extent that the Fair Market Value (as determined below) of the cash and value of any other consideration included in the payment per Ordinary Share, share of Common Stock exceeds the Last reported Reported Sale Price of Ordinary Shares the Common Stock on the Trading Day immediately after next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amendedoffer, the Conversion Rate will shall be adjusted increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the Expiration Date10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires; CR’ CR1 = the Conversion Rate in effect immediately after the close of business on the 10th Trading Day immediately following, and including, the Trading Day immediately following next succeeding the Expiration Datedate such tender or exchange offer expires; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and any other consideration (as determined by the Company’s Board of Directors) paid or payable for the Ordinary Shares validly tendered shares accepted for purchase or exchanged and not withdrawn as of the Expiration Dateexchange in such tender or exchange offer; OS0 = the number of Ordinary Shares shares of Common Stock outstanding immediately before prior to the last time tenders or exchanges may be made pursuant to date such tender or exchange offer (the “Expiration Time”) expires (prior to giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); OS’ OS1 = the number of Ordinary Shares shares of Common Stock outstanding immediately after the Expiration Time date such tender or exchange offer expires (after giving effect solely to the reduction of shares accepted for purchase or exchange in such tendetender or exchange offer); and SP1 = the average of the Last Reported Sale Prices of Common Stock over the 10 consecutive Trading-Day period commencing on, and including, the Trading Day next succeeding the date such tender or exchange offer expires. Such increase will be determined at the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires but will be given effect immediately after the open of business on the Trading Day next succeeding the date such tender or exchange offer expires; provided that, if the relevant Conversion Date occurs during the 10 Trading Days immediately following, and including, the Trading Day next succeeding the expiration date of any tender or exchange offer, references to “10” or “10th” in the preceding paragraph shall be deemed replaced with such lesser number of trading days as have elapsed between the expiration date of such tender or exchange offer and such conversion date in determining the Conversion Rate. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made. Except as stated herein, the Company shall not adjust the Conversion Rate for the issuance of shares of Common Stock or any securities convertible into or exchangeable for shares of Common Stock or the right to purchase shares of Common Stock or such convertible or exchangeable securities.
(f) The Company may (but is not required to) increase the Conversion Rate to avoid or diminish income tax to holders of Common Stock or rights to purchase shares of Common Stock in connection with a dividend or distribution of shares (or rights to acquire shares) or any similar event treated as such for income tax purposes.
(g) To the extent permitted by applicable law and the rules of any stock exchange or market upon which the Common Stock is listed or admitted for trading, the Company m
Appears in 1 contract
Sources: Fifth Supplemental Indenture (Allegheny Technologies Inc)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company from time to time, without duplication, as follows:
(a) If In case the Company issues Ordinary Shares Company, at any time or from time to all time after the issuance of the Notes, shall (i) pay a dividend, or substantially all holders make a distribution on its Common Stock, exclusively in shares of Ordinary Shares as its Common Stock or other Capital Stock of the Company; (ii) subdivide or split its outstanding Common Stock into a dividend greater number of shares; (iii) combine or distributionreclassify its outstanding Common Stock into a smaller number of shares; or (iv) issue by reclassification of the shares of Common Stock any shares of the Company's Capital Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m.immediately prior to the record date or effective date, New York City timeas the case may be, on for the Trading Day immediately preceding adjustment pursuant to this Section 10.06(a) as described below, shall be adjusted so that the Ex-Dividend Date Holder of any Notes thereafter surrendered for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; OS0 = conversion shall be entitled to receive the number of Ordinary Shares outstanding at 5:00 p.m.shares of Common Stock which such Holder would have owned or have been entitled to receive after the happening of any of the events described above had such Notes been converted immediately prior to such record date or effective date, New York City time, on as the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distributioncase may be. Such An adjustment made pursuant to this Section 10.06(a) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for such applicable record date in the case of a dividend or distributiondistribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or reclassification of the Common Stock. If any dividend or distribution of the type described in this Section 12.03(aclause (i) above is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If In case the Company effects at any time or from time to time after the issuance of the Notes shall issue rights or warrants to all or substantially all holders of the Common Stock entitling them to subscribe for or purchase Common Stock at a subdivision or combination price per share less than the Market Price per share of Ordinary Shares, the Conversion Rate will be adjusted based Common Stock on the following formula: whererecord date fixed for determination of shareholders entitled to receive such rights or warrants, CR0 = the Conversion Rate in effect immediately after such record date shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately after such record date by a fraction of which (i) the numerator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at 5:00 p.m., New York City time, the Market Price per share of Common Stock (on the earlier of such record date or the Trading Day immediately preceding the effective ex date for such issuance of such subdivision rights or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combinationwarrants). Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately prior to 9:00 a.m., New York City time, after the opening of business on the day following the record date on which such split or combination becomes effective.
(c) If for the Company issues determination of shareholders entitled to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to receive such rights or warrants; and Z = . To the number extent that shares of Ordinary Shares equal Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall be readjusted to the quotient Conversion Rate which would then be in effect had the adjustments made upon the issuance of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending been made on the Trading Day immediately preceding basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such record date for the determination of shareholders entitled to receive such issuance was first publicly announcedrights or warrants had not been fixed. For purposes of this Section 12.03(c), in In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Pricessuch Market Price, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereofwarrants, with the value of such consideration, if other than cash, to be determined by the Board of Directors Directors.
(c) In case the Company shall, by dividend or in a merger, amalgamation or consolidation or otherwise, distribute to all holders of Common Stock any evidences of indebtedness, shares of Capital Stock of any class or series, other securities, cash or assets (excluding (i) any dividend, distribution or issuance covered by those referred to in Section 10.06(a) or 10.06(b) hereof and (ii) any dividend or distribution paid exclusively in cash, shares of Capital Stock or similar Equity Interests in the case of a Spin-Off referred to in Section 10.06(e) hereof, and any dividend or distribution paid exclusively in cash referred to in Section 10.06(d) hereof) (any of the Company. If any rights or warrants of the type described foregoing hereinafter in this Section 12.03(a10.06(c) are not so issuedcalled the "DISTRIBUTED ASSETS OR NOTES") in an aggregate amount per share of Common Stock that, combined together with the Conversion Rate shall again be readjusted, effective as aggregate amount of any other such distributions to all holders of its Common Stock made within the 12 months preceding the date the Company publicly announces not to issue of payment of such rights or warrantsdistribution, to the Conversion Rate that would then be and in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration respect of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any which no adjustment made pursuant to this Section 12.03(c10.06(c) shall become effective immediately prior to 9:00 a.m.has been made, New York City time, on the Ex-Dividend Date for the applicable distribution.
(d) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, exceeds 10% of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
(i) any dividends or distributions referred to in Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, Distribution Adjustment Market Price on the Trading Day immediately preceding the Ex-Dividend Date for declaration of such distribution; CR’ = , then the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by dividing the Conversion Rate in effect immediately prior to the close of business on the Ex-Dividend Date record date fixed for determination of stockholders entitled to receive such distribution; SP0 = distribution below by a fraction of which (A) the average numerator shall be the Distribution Adjustment Market Price per share of the Last Reported Sale Prices Common Stock on the earlier of Ordinary Shares over the 10 consecutive Trading Day period ending on such record date or the Trading Day immediately preceding the Ex-Dividend Date ex date for such dividend or distribution; , and FMV = (B) the denominator shall be (1) the Distribution Adjustment Market Price per share of the Common Stock on the earlier of such record date or the Trading Day immediately preceding the ex date for such dividend or distribution plus (2) the Fair Market Value on the earlier of such record date or the Trading Day immediately preceding the ex date for such dividend or distribution (as determined in good faith by the Board of Directors Directors, whose determination shall be conclusive, and described in a certificate filed with the Trustee and the Paying Agent) of the Company) on the Ex-Dividend Date for such distribution Distributed Assets or Notes so distributed applicable to one share of the shares of Capital Common Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date record date for the determination of shareholders entitled to receive such distribution; provided, however, that if (i) the Fair Market Value of the portion of the Distributed Assets or Notes so distributed applicable distribution. If “FMV” (as defined above) to one share of Common Stock is equal to or greater than “SP0” the Distribution Adjustment Market Price of the Common Stock on the record date for the determination of shareholders entitled to receive such distribution or (as defined above)ii) the Distribution Adjustment Market Price of the Common Stock on the record date for the determination of shareholders entitled to receive such distribution is greater than the Fair Market Value per share of such Distributed Assets or Notes by less than $1.00, other than in respect to a Public Spin-Offthen, in lieu of the adjustment described in this Section 12.03(d)foregoing adjustment, adequate provision shall be made so that each Holder of Notes shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversionthe shares of Common Stock, the kind and amount of assets (including cash)assets, shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s debt securities, as applicable, that such or rights or warrants comprising the Distributed Assets or Notes the Holder would have received if had such Holder had converted such Notes immediately prior to the record date for determining the determination of shareholders entitled to receive such distribution. In the event that such distribution is not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such distribution had not been declared. With respect to an adjustment pursuant to this Section 12.03(d) where there has been a payment 10.06(c), in the event that the Company makes any distribution to all holders of a dividend or other distribution on the Ordinary Shares consists Common Stock consisting of shares of Capital Stock of any class or series, or similar Equity Interest, Interests in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on of the Nasdaq Stock MarketCompany, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by dividing the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, the close of business on the Exrecord date fixed for the determination of holders of Common Stock entitled to receive such distribution by a fraction of which (i) the numerator shall be the Spin-Dividend Date Off Market Price per share of the distribution will Common Stock on such record date and (ii) the denominator shall be increased based (x) the Spin-Off Market Price per share of the Common Stock on such record date plus (y) the following formula: where, CR0 = Spin-Off Market Price per Equity Interest of the Subsidiary or other business unit of the Company on such record date. The adjustment to the Conversion Rate set forth in effect this Section 10.06(c) will occur at 5:00 p.m., New York City time, on the earlier of (1) the 10th Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing onfrom, and including, the effective date of the Spin-Off; Off and MP0 = (2) the average date of the Last Reported Sale Prices Initial Public Offering of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of securities being distributed in the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to that Initial Public Offering is effected simultaneously with the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issuedSpin-Off.
(ed) If any dividends or other distributions by In case the Company shall make any distributions, by dividend or otherwise, during any Semi-Annual Interest Payment Period consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made outstanding shares of Common Stock, then, and in connection with liquidation, dissolution or winding-up of the Company)each such case, the Conversion Rate will shall be adjusted based on so that the following formula: where, CR0 = same shall equal the Conversion Rate determined by dividing the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the close of business on the record date fixed for the determination of holders of Common Stock entitled to receive such distribution by a fraction of which (A) the numerator shall be the Market Price per share of the Common Stock on the earlier of such record date or the Trading Day immediately preceding the Ex-Dividend Date ex date for such dividend or distribution; CR’ = distribution and (B) the Conversion Rate in effect denominator shall be (1) the Market Price per share of Common Stock on the Ex-Dividend Date for earlier of such dividend record date or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date ex date for such dividend or distribution; and C = distribution plus (2) the amount in cash per share of Ordinary Shares that such distributions (appropriately adjusted from time to time for any stock dividends on or subdivisions or combination of Common Stock).
(e) Upon conversion of the Notes, the Holders shall receive, if they receive shares of Common Stock, in addition to the Common Stock issuable upon such conversion, the rights issued under any shareholder rights plan the Company pays as a dividend implements (notwithstanding the occurrence of an event causing such rights to separate from the Common Stock at or otherwise distributes to holders of Ordinary Shares. An adjustment prior to the Conversion Rate made time of conversion) unless, prior to conversion, the rights have expired, terminated or been redeemed or exchanged in accordance with the rights plan. If, and only if, the Holders of Notes receive rights under such shareholder rights plans as described in the preceding sentence upon conversion of their Notes, then no other adjustment pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes 10.06 shall be entitled to receive upon conversion, made in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that connection with such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declaredshareholder rights plans.
(f) If For purposes of this Section 10.06, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not pay any dividend or make any distribution on shares of its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included Common Stock held in the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors treasury of the Company.
(g) on Notwithstanding the Expiration Dateforegoing, in the event of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made an adjustment pursuant to such tender Sections 10.06(c), (d) or exchange offer (e), the “Expiration Time”"MAXIMUM CONVERSION RATE" shall initially be 18.6567 and shall be appropriately adjusted from time to time pursuant to any adjustments in Section 10.06(a) (prior to giving effect to such tender or exchange offer); OS’ = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tendeand Section 10.06(b) hereof.
Appears in 1 contract
Sources: Supplemental Indenture (Fisher Scientific International Inc)
Adjustments to Conversion Rate. The If the number of Ordinary Shares represented by each ADS is changed, after the date of this Note, for any reason other than one or more of the events described in this Section 5.3, the Company shall make an appropriate adjustment to the Conversion Rate such that the number of Ordinary Shares represented by the ADSs upon which conversion of the Notes is based remains the same. In addition, the Conversion Rate shall be adjusted from time to time by the Company as follows:
(a) If In case the Company issues shall, at any time or from time to time while any of the Notes are outstanding, pay a dividend in Ordinary Shares (directly or in the form of ADSs) or make a distribution in Ordinary Shares to all or substantially all holders of Ordinary Shares as (other than a dividend or distributiondistribution in connection with a transaction to which Section 5.4 applies), then the Conversion Rate will shall be adjusted based on the following formula: where, CR1 = CR0 × OS1 OS0 where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such dividend or distribution; CR’ CR1 = the Conversion Rate in effect on the Exex-Dividend Date dividend date for such dividend or distribution; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such dividend or distribution; and OS’ OS1 = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distribution. Such Any adjustment made pursuant to this Section 5.3(a) shall become effective immediately prior to 9:00 a.m., New York City time, on the Exex-Dividend Date dividend date for such dividend or distribution. If any dividend or distribution that is the subject of the type described in this Section 12.03(a5.3(a) is declared but not so paid or made, the Conversion Rate shall again be adjustedimmediately readjusted, effective as of the date the Board of Directors of the Company (the “Board of Directors”) publicly announces its decision not to pay or make such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. For purposes of this Section 5.3(a), the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the trading day immediately preceding the ex-dividend date for such dividend or distribution shall not include Ordinary Shares held in treasury, if any. The Company will not pay any dividend or make any distribution on Ordinary Shares held in treasury, if any.
(b) If In case outstanding Ordinary Shares (directly or in the Company effects form of ADSs) shall be subdivided or split into a subdivision or combination greater number of Ordinary SharesShares or combined or reverse split into a smaller number of Ordinary Shares (in each case, other than in connection with a transaction to which Section 5.4 applies), the Conversion Rate will shall be adjusted based on the following formula: where, CR1 = CR0 × OS1 OS0 where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the effective date of such subdivision or combination; CR’ CR1 = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the effective date of such subdivision or combination; and OS’ OS1 = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such Any adjustment made pursuant to this Section 5.3(b) shall become effective immediately prior to 9:00 a.m., New York City time, on the effective date on which of such split subdivision or combination becomes effectivecombination.
(c) If In case the Company issues shall issue rights (other than rights issued pursuant to a shareholders’ rights plan or a dividend or distribution on Ordinary Shares in Ordinary Shares as set forth in (a) above) or warrants to all or substantially all the holders of its Ordinary Shares any rights (whether direct or warrants (in the form of ADSs), other than pursuant an issuance in connection with a transaction to any rights plan described in which Section 12.03(d)(iii) below) 5.4 applies, entitling them to purchase, for a period of not more than 45 expiring within forty-five (45) calendar days after of the date of the announcement for such issuance, Ordinary Shares (directly or in the form of ADSs) at an aggregate a price per share Ordinary Share less than the average of the Last Reported Closing Sale Prices of the ADSs divided by the number of Ordinary Shares then represented by each ADS during the 10 ten (10) consecutive Trading Day trading day period ending on the Trading Day trading day immediately preceding the ex-dividend date such issuance was first publicly announcedfor the distribution, then the Conversion Rate will shall be adjusted based on the following formula: where, CR1 = CR0 × OS0+X OS0+Y where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such issuance; CR’ CR1 = the Conversion Rate in effect on the Exex-Dividend Date dividend date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to such rights or warrants; and Z = the number of Ordinary Shares equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced. For purposes of this Section 12.03(c), in determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable for such Ordinary Shares, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution.
(d) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
(i) any dividends or distributions referred to in Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value (as determined by the Board of Directors of the Company) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of shares of Capital Stock of any class or series, or similar Equity Interest, in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(f) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”) (prior to giving effect to such tender or exchange offer); OS’ = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tende
Appears in 1 contract
Sources: Convertible Note Agreement (Sequans Communications)
Adjustments to Conversion Rate. The If the number of Ordinary Shares represented by each ADS is changed, after the date of this Note, for any reason other than one or more of the events described in this Section 5.3, the Company shall make an appropriate adjustment to the Conversion Rate such that the number of Ordinary Shares represented by the ADSs upon which conversion of the Notes is based remains the same. In addition, the Conversion Rate shall be adjusted from time to time by the Company as follows:
(a) If In case the Company issues shall, at any time or from time to time while any of the Notes are outstanding, pay a dividend in Ordinary Shares (directly or in the form of ADSs) or make a distribution in Ordinary Shares to all or substantially all holders of Ordinary Shares as (other than a dividend or distributiondistribution in connection with a transaction to which Section 5.4 applies), then the Conversion Rate will shall be adjusted based on the following formula: where, CR1 = CR0 × OS1 OS0 where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such dividend or distribution; CR’ CR1 = the Conversion Rate in effect on the Exex-Dividend Date dividend date for such dividend or distribution; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such dividend or distribution; and OS’ OS1 = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distribution. Such Any adjustment made pursuant to this Section 5.3(a) shall become effective immediately prior to 9:00 a.m., New York City time, on the Exex-Dividend Date dividend date for such dividend or distribution. If any dividend or distribution that is the subject of the type described in this Section 12.03(a5.3(a) is declared but not so paid or made, the Conversion Rate shall again be adjustedimmediately readjusted, effective as of the date the Board of Directors of the Company (the “Board of Directors”) publicly announces its decision not to pay or make such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. For purposes of this Section 5.3(a), the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the trading day immediately preceding the ex-dividend date for such dividend or distribution shall not include Ordinary Shares held in treasury, if any. The Company will not pay any dividend or make any distribution on Ordinary Shares held in treasury, if any.
(b) If In case outstanding Ordinary Shares (directly or in the Company effects form of ADSs) shall be subdivided or split into a subdivision or combination greater number of Ordinary SharesShares or combined or reverse split into a smaller number of Ordinary Shares (in each case, other than in connection with a transaction to which Section 5.4 applies), the Conversion Rate will shall be adjusted based on the following formula: where, CR1 = CR0 × OS1 OS0 where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the effective date of such subdivision or combination; CR’ CR1 = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the effective date of such subdivision or combination; and OS’ OS1 = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such Any adjustment made pursuant to this Section 5.3(b) shall become effective immediately prior to 9:00 a.m., New York City time, on the effective date on which of such split subdivision or combination becomes effectivecombination.
(c) If In case the Company issues shall issue rights (other than rights issued pursuant to a shareholders’ rights plan or a dividend or distribution on Ordinary Shares in Ordinary Shares as set forth in (a) above) or warrants to all or substantially all the holders of its Ordinary Shares any rights (whether direct or warrants (in the form of ADSs), other than pursuant an issuance in connection with a transaction to any rights plan described in which Section 12.03(d)(iii) below) 5.4 applies, entitling them to purchase, for a period of not more than 45 expiring within forty-five (45) calendar days after of the date of the announcement for such issuance, Ordinary Shares (directly or in the form of ADSs) at an aggregate a price per share Ordinary Share less than the average of the Last Reported Closing Sale Prices of the ADSs divided by the number of Ordinary Shares then represented by each ADS during the 10 ten (10) consecutive Trading Day trading day period ending on the Trading Day trading day immediately preceding the ex-dividend date such issuance was first publicly announcedfor the distribution, then the Conversion Rate will shall be adjusted based on the following formula: where, CR1 = CR0 × OS0+X OS0+Y where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such issuance; CR’ CR1 = the Conversion Rate in effect on the Exex-Dividend Date dividend date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such issuance; Y X = the total number of Ordinary Shares issuable (directly or in the form of ADSs) pursuant to such rights or warrants; and Z Y = the number of Ordinary Shares equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants warrants, divided by (y) the average of the Last Reported Closing Sale Prices of Ordinary Shares the ADSs during the 10 ten (10) consecutive Trading Day trading day period ending on the Trading Day trading day immediately preceding the ex-dividend date for such issuance was first publicly announcedissuance. For purposes of Any adjustment made pursuant to this Section 12.03(c)5.3(c) shall become effective immediately prior to 9:00 a.m., in determining whether any rights or warrants entitle New York City time, on the Holders to subscribe for or purchase Ordinary Shares at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable ex-dividend date for such Ordinary Shares, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Companyissuance. If any rights or warrants of the type described in this Section 12.03(a5.3(c) are not so issued, the Conversion Rate shall again be immediately readjusted, effective as of the date the Company Board of Directors publicly announces its decision not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right To the extent that such rights or warrant described in this Section 12.03(c) is warrants are not exercised or converted prior to their expiration or Ordinary Shares are otherwise not delivered pursuant to such rights or warrants upon the expiration exercise of the exercisability such rights or convertibility thereofwarrants, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of Ordinary Shares actually delivered. In determining the aggregate price payable to exercise such rights and warrants, there shall be taken into account any consideration received by the Company for such rights or warrants and the value of such consideration (if such right or warrant had not been so issuedother than cash, to be determined in good faith by the Board of Directors). Any adjustment made pursuant to For purposes of this Section 12.03(c) shall become effective immediately prior to 9:00 a.m.5.3(c), the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Extrading day immediately preceding the ex-Dividend Date dividend date for the applicable distributionsuch issuance shall not include Ordinary Shares held in treasury, if any. The Company will not issue any such rights or warrants in respect of Ordinary Shares held in treasury, if any.
(d) If In case the Company distributes shares shall, by dividend or otherwise, distribute to all or substantially all holders of Capital Stock, its outstanding Ordinary Shares (whether direct or in the form of ADSs) of any class of capital stock of the Company or evidences of its indebtedness or other assets, assets (including securities, of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
but excluding (i) any dividends or distributions referred to in Section 12.03(a) above;
5.3(a), (ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) any rights and or warrants referred to in Section 12.03(c5.3(c), (iii) above;
any dividends or distributions referred to in Section 5.3(e), (iv) any dividends or distributions in connection with a transaction to which Section 5.4 applies, or (v) any Spin-Offs to which the provisions set forth below in this Section 12.03(d5.3(d) shall apply;
applies) (v) any of the rights or warrants referred to foregoing hereinafter in this Section 12.03(d5.3(d) below (to called the extent and as specified therein“Distributed Assets”); and
(vi) dividends or distributions referred to , then, in Section 12.03(e) below. then each such case, the Conversion Rate will shall be adjusted based on the following formula: where, CR1 = CR0 × ▇▇▇ ▇▇▇ – FMV where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such distribution; CR’ CR1 = the Conversion Rate in effect on the Exex-Dividend Date dividend date for such distribution; SP0 = the average of the Last Reported Closing Sale Prices of the ADSs multiplied by the number of Ordinary Shares over then represented by each ADS during the 10 ten (10) consecutive Trading Day trading day period ending on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such distribution; and FMV = the Fair Market Value (as determined by the Board of Directors of the Company) fair market value on the Exex-Dividend Date dividend date for such distribution of the shares of Capital Stock, evidences of indebtedness, or assets, including securities, Distributed Assets so distributed, expressed as an amount per distributed applicable to one (1) Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to determined in good faith by the record date for determining Board of Directors. In the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) event where there has been a payment of a dividend or other distribution on the Ordinary Shares consists (directly or in the form of ADSs) or shares of Capital Stock capital stock of any class or series, or similar Equity Interestequity interest, in of or relating to a Subsidiary or other business unit of the Company (a “Spin-Off”), ) that are, or, or when issued, will be, traded or listed on the New York Stock Exchange, the Nasdaq Stock Global Market, the New York Stock Exchange Nasdaq Global Select Market or any other U.S. national securities exchange or market (a “Public Spin-Off”)market, then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will shall instead be increased adjusted based on the following formula: where, CR1 = CR0 × FMV0 + MP0 MP0 where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such distribution; CR’ CR1 = the Conversion Rate in effect on the Exex-Dividend Date dividend date for such distribution; FMV0 = the average of the Last Reported Closing Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares Distributed Assets applicable to one share of (1) Ordinary Shares Share during the 10 ten consecutive Trading Day trading day period commencing on, on and including, including the effective date of the Spin-OffOff (the “Spin-Off Valuation Period”); and MP0 = the average of the Last Reported Closing Sale Prices of the ADSs multiplied by the number of Ordinary Shares then represented by each ADS during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-OffOff Valuation Period. Such Any adjustment made pursuant to this Section 5.3(d) shall become effective immediately prior to 9:00 a.m., New York City time, on the Exex-Dividend Date dividend date for such distribution. If any such dividend or distribution of the type described in this Section 12.03(d5.3(d) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Company Board of Directors publicly announces its decision not to make pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights Rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares (whether direct or in the form of ADSs) entitling the holders thereof to subscribe for or purchase shares of Capital Stock the Company’s capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) 5.3 (and no adjustment to the Conversion Rate under this Section 5.3 will be required required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d5.3(d), except as set forth under Section 12.06. If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Note, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10rights. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 5.3 was made, (aA) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, repurchase and (bB) in the case of such rights or warrant warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued. No adjustment of the Conversion Rate shall be made pursuant to this Section 5.3(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed to Purchaser upon conversion by Purchaser of this Note.
(e) If any dividends or other distributions by In case the Company consisting exclusively of cash shall pay a dividend or otherwise distribute to all or substantially all holders of its Ordinary Shares (direct or in the form of ADSs) a dividend or other than dividends distribution of exclusively cash excluding (i) any dividend or distributions made distribution in connection with the liquidation, dissolution or winding-winding up of the Company), whether voluntary or involuntary and (ii) any dividend or distribution in connection with a transaction to which Section 5.4 applies, then the Conversion Rate will shall be adjusted based on the following formula: where, CR1 = CR0 × ▇▇▇ ▇▇▇ – DIV where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such dividend or distribution; CR’ CR1 = the Conversion Rate in effect on the Exex-Dividend Date dividend date for such dividend or distribution; SP0 = the average of the Last Reported Closing Sale Prices of the ADSs multiplied by the number of Ordinary Shares then represented by each ADS during the 10 ten (10) consecutive Trading Day trading day period ending on, and including, on the Trading Day trading day immediately preceding the Exex-Dividend Date dividend date for such dividend or distribution; and C DIV = the amount in cash per share of Ordinary Shares that Share the Company pays as a dividend or otherwise distributes to holders of its Ordinary Shares. An Any adjustment to the Conversion Rate made pursuant to this Section 12.03(e5.3(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Exex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution of the type described in this Section 12.03(d5.3(e) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted, effective as of the date the Company Board of Directors publicly announces its decision not to make pay such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(f) If In case of purchases of the Company or any of its Subsidiaries purchases Ordinary Shares (directly or in the form of ADSs) pursuant to a tender offer or exchange offer made by the Company or any Subsidiary of its Subsidiaries the Company for all or any portion of the Ordinary SharesShares (directly or indirectly in the form of ADSs), to the extent that the Fair Market Value (fair market value, as determined below) in good faith by the Board of the Directors, of cash and any other consideration included in the payment per Ordinary Share, Share (or equivalent payment per Ordinary Share represented by the ADSs) exceeds the Last reported Closing Sale Price of Ordinary Shares the ADSs divided by the number of ADSs then represented by each ADS on the Trading Day immediately after trading day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (as it may be amended) (the “Expiration Date”), as it may be amended, the Conversion Rate will shall be adjusted based on the following formula: where, CR1 = CR0 × FMV + (SP1 x OS1) SP1 x OS0 where CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ CR1 = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”) (prior to giving effect to such tender or exchange offer); OS’ = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tendein
Appears in 1 contract
Sources: Convertible Note Agreement (Sequans Communications)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company as follows:follows (and as provided in Section 11.07):
(a) If the Company issues Ordinary Shares shall hereafter pay a dividend or make a distribution to all or substantially all holders of Ordinary Shares as a dividend or distributionthe outstanding Common Stock in shares of Common Stock, the Conversion Rate will shall be adjusted based on increased so that the following formula: where, CR0 = same shall equal the rate determined by multiplying the Conversion Rate in effect at 5:00 p.m.9:00 a.m., New York City time, on the Trading Day day immediately preceding following the Ex-Dividend Date for such dividend or distribution; CR’ = record date by a fraction,
(i) the Conversion Rate in effect on numerator of which shall be the Ex-Dividend Date for such dividend or distribution; OS0 = sum of the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on such record date and the Trading Day immediately preceding the Ex-Dividend Date for total number of shares of Common Stock constituting such dividend or other distribution; and OS’ = and
(ii) the denominator of which shall be the number of Ordinary Shares that would be shares of Common Stock outstanding immediately afterat 5:00 p.m., and solely as a result ofNew York City time, on such dividend or distributionrecord date. Such adjustment increase shall become effective immediately prior to after 9:00 a.m., New York City time, on the Ex-Dividend Date for day immediately following such dividend or distributionrecord date. If any dividend or distribution of the type described in this Section 12.03(a11.05(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company effects shall issue rights or warrants to all holders of Common Stock entitling them to subscribe for or purchase, for a subdivision period expiring not more than 45 days after the date of distribution, shares of Common Stock (or combination of Ordinary Sharessecurities convertible into Common Stock) at a price (or having a conversion price) per share less than the Current Market Price on the record date, the Conversion Rate will shall be adjusted based on increased so that the following formula: where, CR0 = same shall equal the rate determined by multiplying the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to such record date by a fraction,
(i) the Trading Day immediately preceding the effective date numerator of such subdivision or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = which shall be the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on such record date plus the Trading Day immediately preceding total number of shares of Common Stock so offered for subscription or purchase (or into which the effective date convertible securities so offered are convertible); and
(ii) the denominator of such subdivision or combination; and OS’ = which shall be the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders shares of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares Common Stock outstanding at 5:00 p.m., New York City time, on such record date plus the Trading Day immediately preceding number of shares which the Ex-Dividend Date for such issuance; Y = aggregate offering price of the total number of Ordinary Shares issuable shares so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price. Such adjustment shall be successively made whenever any such rights or warrants are issued, and shall become effective immediately after 9:00 a.m., New York City time, on the day immediately following such record date. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered pursuant to such rights or warrants; and Z = , upon the number expiration or termination of Ordinary Shares equal such rights or warrants, the Conversion Rate shall be readjusted to the quotient Conversion Rate that would then be in effect had the adjustment made upon the issuance of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending been made on the Trading Day immediately preceding basis of delivery of only the number of shares of Common Stock (or securities convertible into Common Stock) actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such record date such issuance was first publicly announcedhad not been fixed. For purposes of this Section 12.03(c), in In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of Common Stock (or securities convertible into Common Stock) at a price (or having a conversion price) per share less than the average of the applicable Last Reported Sale Pricessuch Current Market Price, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value Fair Market Value of such consideration, if other than cash, to be determined by the Board of Directors of Directors, whose determination shall be conclusive. Notwithstanding the Company. If any rights or warrants of foregoing, no adjustment shall be made to the type described in Conversion Rate pursuant to this Section 12.03(a11.05(b) are not so issuedfor the rights of holders of Common Stock to participate in any dividend reinvestment plan made available to all holders of Common Stock.
(c) If the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to at 9:00 a.m., New York City time, on the Ex-Dividend Date for day immediately following the applicable distributionday upon which such subdivision becomes effective shall be proportionately increased, and conversely, in the event outstanding shares of Common Stock shall be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at 9:00 a.m., New York City time, on the day immediately following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after 9:00 a.m., New York City time, on the day immediately following the day upon which such subdivision or combination becomes effective.
(d) If the Company distributes shall, by dividend or otherwise, distribute to all holders of Common Stock shares of any class of Capital Stock, Stock of the Company (other than any dividends or distributions to which Section 11.05(a) applies) or evidences of its indebtedness or other assets, assets (including securities, of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
but excluding (i) any dividends or distributions referred to in Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d11.05(b), (ii) below any dividend or distribution paid exclusively in cash or (iii) any dividends and distributions in connection with a reclassification, consolidation, merger, combination or sale or conveyance to which Section 11.06 applies) (any of the extent and as specified therein); and
(vi) dividends or distributions foregoing hereinafter referred to in this Section 12.03(e11.05(d) below. then as the “Distributed Property”), then, in each such case, the Conversion Rate will shall be adjusted based on increased so that the following formula: where, CR0 = same shall be equal to the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = rate determined by multiplying the Conversion Rate in effect on the Ex-Dividend Date for record date with respect to such distributiondistribution by a fraction,
(i) the numerator of which shall be the Current Market Price on such record date; SP0 = and
(ii) the average denominator of which shall be the Last Reported Sale Prices of Ordinary Shares over the 10 consecutive Trading Day period ending Current Market Price on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = record date less the Fair Market Value (as determined by the Board of Directors Directors, whose determination shall be conclusive, and described in a resolution of the CompanyBoard of Directors) on the Ex-Dividend Date for such distribution record date of the portion of the Distributed Property applicable to one share of Common Stock (determined on the basis of the number of shares of Capital Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Sharethe Common Stock outstanding on such record date). Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for day immediately following such record date; provided that if the applicable distribution. If “FMV” then Fair Market Value (as defined aboveso determined by the Board of Directors) of the portion of the Distributed Property applicable to one share of Common Stock is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Offthe Current Market Price on the record date, in lieu of the adjustment described in this Section 12.03(d)foregoing adjustment, adequate provision shall be made so that each Holder holder of Notes shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, conversion the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that Distributed Property such Holder holder would have received if had such Holder had holder converted such its Notes immediately prior to on the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of (assuming conversion solely into shares of Capital Stock Common Stock). To the extent that any of any class or seriesthe Distributed Property is not distributed, or similar Equity Interest, in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior shall be readjusted to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate that would then be in effect at 5:00 p.m., New York City time, had the adjustment made been made on the Trading Day immediately preceding basis of only the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distributionDistributed Property actually distributed. If any such dividend or distribution described in this Section 12.03(d) is declared but not so paid or made, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding If the delivery requirements set forth under Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 12.02, if an adjustment 11.05(d) by reference to the Conversion Rate is required pursuant to this Section 12.03(d) during trading market for any settlement securities, it must in doing so consider the prices in such market over the same period used in respect of Notes that have been tendered for conversion, delivery of computing the related conversion consideration will be delayed Current Market Price on the applicable record date. Subject to the extent necessary in order to complete the calculations provided for in this provisions of Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d)11.08, rights or warrants (including rights under any Rights Plan) distributed by the Company to all or substantially all holders of Ordinary Shares Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company’s Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Sharesshares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary SharesCommon Stock, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d11.05(d) (and no adjustment to the Conversion Rate under this Section 11.05(d) will be required required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d11.05(d), except as set forth under Section 12.06. If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised without exercise by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d11.05(d) or Section 12.08 was made, (a1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares Common Stock as of the date of such redemption or repurchase, and (b2) in the case of such rights or warrant warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such expired or terminated rights and warrants had not been issued.
. For purposes of this Section 11.05(d), Section 11.05(a) and Section 11.05(b), any dividend or distribution to which this Section 11.05(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock (eor both), shall be deemed instead to be (1) If any dividends a dividend or other distributions by distribution of the Company consisting exclusively evidences of cash to all indebtedness, assets or substantially all holders shares of Ordinary Shares (Capital Stock other than dividends such shares of Common Stock or distributions made in connection rights or warrants (and any Conversion Rate adjustment required by this Section 11.05(d) with liquidation, dissolution respect to such dividend or winding-up of the Companydistribution shall then be made), the immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Conversion Rate will adjustment required by Sections 11.05(a) and 11.05(b) with respect to such dividend or distribution shall then be adjusted based on the following formula: wheremade), CR0 = the Conversion Rate except any shares of Common Stock included in effect such dividend or distribution shall not be deemed “outstanding at 5:00 p.m., New York City time, on such record date” within the Trading Day immediately preceding meaning of Sections 11.05(a) and 11.05(b).
(e) If the Ex-Dividend Date for such Company shall, by dividend or distribution; CR’ = otherwise, distribute to all holders of its Common Stock cash (excluding (i) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, (ii) any quarterly cash dividend on its Common Stock to the extent that the aggregate amount of cash distributions per share of Common Stock in any quarter does not exceed $0.71 (the “Dividend Threshold Amount”) and (iii) any dividends and distributions in connection with a reclassification, consolidation, merger, combination or sale or conveyance to which Section 11.06 applies), then, in such case, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to 5:00 p.m., New York City time, on such record date by a fraction,
(i) the Ex-numerator of which shall be the Current Market Price on such record date less the Dividend Date for Threshold Amount (as such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made Threshold Amount may be adjusted pursuant to this Section 12.03(e11.05(e)); and
(ii) the denominator of which shall become be the Current Market Price on such record date less the amount of cash so distributed applicable to one share of Common Stock. Such adjustment shall be effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for day immediately following the record date; provided that if the portion of the cash so distributed applicable dividend or distribution. If “C” (as defined above) to one share of Common Stock is equal to or greater than “SP0” (as defined above)the Current Market Price on the record date, in lieu of the adjustment described in this Section 12.03(e)foregoing adjustment, adequate provision shall be made so that each Holder holder of Notes shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, conversion the amount of cash that such Holder holder would have received if had such Holder had holder converted such Notes immediately prior to on the record date for determining (assuming conversion solely into shares of Common Stock). To the shareholders entitled to receive such dividend or distribution. If any extent that not all of such dividend or distribution described is made, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in this Section 12.03(d) effect had the adjustment made been made on the basis of only the dividend or distribution actually made. If none of such dividend or distribution is declared but not so paid or made, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If an adjustment is required to be made as set forth in this Section 11.05(e) as a result of a distribution that is not a quarterly dividend, the Dividend Threshold Amount shall be deemed to be zero for purposes of calculating the adjustment to the Conversion Rate under this Section 11.05(e). The Dividend Threshold Amount shall be adjusted inversely proportional to the adjustments to the Conversion Rate made pursuant to Sections 11.05(a), (b), (c), (d), (f) and (g).
(f) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries Subsidiary for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included in Common Stock shall require the payment (other than payments made under an “odd-lot” stock sale program) to stockholders of consideration per Ordinary Share, exceeds the Last reported Sale Price share of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Common Stock having a Fair Market Value (as determined by the Board of Directors Directors, whose determination shall be conclusive and described in a resolution of the CompanyBoard of Directors) on the Expiration Datethat, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time (the “Expiration Time”) tenders or exchanges may be made pursuant to such tender or exchange offer (offer, exceeds the “Closing Sale Price of a share of Common Stock on the Trading Day next succeeding the Expiration Time”) (, the Conversion Rate shall be increased so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to giving effect the Expiration Time by a fraction,
(i) the numerator of which shall be the sum of (x) the Fair Market Value (determined as aforesaid) of the aggregate consideration payable to such stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer); OS’ = the number ) of Ordinary Shares outstanding immediately after all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (after giving effect solely the shares deemed so accepted up to any such tendemaximum, being referred to as the “Purchased Shares”) and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) at the Expiration Time and the Closing Sale Price of a share of Common Stock on the T
Appears in 1 contract
Sources: Indenture (Macerich Co)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company if any of the following events occurs, except that the Company shall not make any adjustments to the Conversion Rate if Holders of the Securities participate (other than in the case of a share split or share combination), at the same time and upon the same terms as follows:holders of the Common Stock and solely as a result of holding the Securities, in any of the transactions described in this Section 12.02, without having to convert their Securities, as if they held a number of shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holder.
(a) If the Company exclusively issues Ordinary Shares to all or substantially all holders shares of Ordinary Shares Common Stock as a dividend or distributiondistribution on shares of the Common Stock, or effects a share split or share combination, the Conversion Rate will shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the open of business on the Trading Day immediately preceding the Ex-Dividend Date for of such dividend or distribution, or immediately prior to the open of business on the effective date of such share split or share combination, as applicable; CR’ ' = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or effective date; OS0 = the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or effective date; and OS' = the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination. Any adjustment made under this Section 12.02(a) shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; OS0 = , or immediately after the number open of Ordinary Shares outstanding at 5:00 p.m., New York City time, business on the Trading Day immediately preceding the Ex-Dividend Date effective date for such dividend share split or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such dividend or distributionshare combination. If any dividend or distribution of the type described in this Section 12.03(a12.02(a) is declared but not so paid or made, or any share split or combination of the type described in this Section 12.02(a) is announced but the outstanding shares of Common Stock are not split or combined, as the case may be, the Conversion Rate shall again be adjustedimmediately readjusted, effective as of the date the Board of Directors of the Company publicly announces determines not to make pay such dividend or distribution, or not to split or combine the outstanding shares of Common Stock, as the case may be, to the Conversion Rate that would then be in effect if such dividend dividend, distribution, share split or distribution share combination had not been declareddeclared or announced.
(b) If the Company effects a subdivision or combination of Ordinary Shares, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares its Common Stock any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 60 calendar days after the announcement date of the announcement such issuance to subscribe for such issuance, Ordinary Shares or purchase shares of Common Stock at an aggregate a price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during Common Stock for the 10 consecutive Trading Day period ending on the Trading Business Day immediately preceding the date of announcement of such issuance was first publicly announcedissuance, then the Conversion Rate will shall be adjusted based on the following formula: formula (provided that the Conversion Rate will be readjusted to the extent that such rights or warrants are not exercised prior to their expiration): where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the open of business on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect immediately after the open of business on the such Ex-Dividend Date for such issuanceDate; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, immediately prior to the open of business on the Trading Day immediately preceding the such Ex-Dividend Date for such issuanceDate; Y X = the total number of Ordinary Shares shares of Common Stock issuable pursuant to such rights or warrants; and Z Y = the number of Ordinary Shares shares of Common Stock equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants warrants, divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement of the issuance of such rights or warrants. Any increase made under this Section 12.02(b) shall be made successively whenever any such rights or warrants are issued and shall become effective immediately after the open of business on the Ex-Dividend Date for such issuance. To the extent that shares of the Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance was first publicly announcedhad not occurred. For purposes of this Section 12.03(c12.02(b), in determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of the Common Stock at less than the such average of the applicable Last Reported Sale PricesPrices of the Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement for such issuance, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution.
(dc) If the Company distributes shares of its Capital Stock, evidences of its indebtedness indebtedness, other assets or property or rights, options or warrants to acquire its Capital Stock or other assets, including securities, of the Company to all or substantially all the holders of the Ordinary SharesCommon Stock, excluding:
excluding (i) any dividends, distributions, rights or warrants as to which an adjustment was effected pursuant to Section 12.02(a) or Section 12.02(b), (ii) dividends or distributions referred to paid exclusively in Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
cash, and (iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs as to which the provisions set forth below in this Section 12.03(d12.02(c) shall apply;
apply (v) the rights any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants referred to in this Section 12.03(d) below (to acquire Capital Stock or other securities of the extent and as specified thereinCompany, the “Distributed Property”); and
(vi) dividends or distributions referred to in Section 12.03(e) below. , then the Conversion Rate will shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the open of business on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ ' = the Conversion Rate in effect immediately after the open of business on the such Ex-Dividend Date for such distributionDate; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value fair market value (as determined by the Board of Directors of the Company) of the Distributed Property with respect to each outstanding share of the Common Stock on the Ex-Dividend Date for such distribution distribution. If the Board of Directors of the shares Company determines the “FMV” (as defined above) of Capital Stock, evidences any distribution for purposes of indebtedness, this Section 12.02(c) by reference to the actual or assets, including when-issued trading market for any securities, it shall in doing so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately prior to 9:00 a.m., New York City time, on preceding the Ex-Dividend Date for the applicable such distribution. If Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d)foregoing increase, each Holder of Notes a Security shall be entitled to receive upon conversionreceive, in addition to Ordinary Sharesrespect of each $1,000 principal amount thereof, and, if applicable, cash payable on conversionat the same time and upon the same terms as holders of the Common Stock receive the Distributed Property, the amount and kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that Distributed Property such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) where there has been owned a payment of a dividend or other distribution on the Ordinary Shares consists number of shares of Capital Common Stock of any class or series, or similar Equity Interest, in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior equal to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such the distribution; FMV0 = . Any increase made under the average portion of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment this Section 12.02(c) above shall become effective immediately prior to 9:00 a.m., New York City time, after the open of business on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not so paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not decreased to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding With respect to an adjustment pursuant to this Section 12.02(c) where there has been a payment of a dividend or other distribution on the delivery requirements set forth under Section 12.02Common Stock or shares of Capital Stock of any class or series, if an or similar equity interest, of or relating to a Subsidiary or other business unit of the Company that is listed on a U.S. securities exchange (a “Spin-Off”), the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the end of the Valuation Period; CR' = the Conversion Rate in effect immediately after the end of the Valuation Period; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of the Common Stock over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period. The adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period under the preceding paragraph shall occur on the last day of the Valuation Period; provided that in respect of Notes that have been tendered for conversionany conversion during the Valuation Period, delivery references in the portion of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d)12.02(c) related to Spin-Offs to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and the Conversion Date in determining the applicable Conversion Rate. For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d12.02(c) (and subject in all respect to Section 12.08), rights rights, options or warrants distributed by the Company to all or substantially all holders of Ordinary Shares its Common Stock entitling the holders thereof them to subscribe for or purchase shares of the Company’s Capital Stock, including Common Stock (either initially or under certain circumstances), which rights rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Sharesshares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Sharesthe Common Stock, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d12.02(c) (and no adjustment to the Conversion Rate under this Section 12.02(c) will be required required) until the occurrence of the earliest Trigger Event, whereupon such rights and rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d12.02(c), except as set forth under Section 12.06. If any such rights right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights rights, options or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event Ex-Dividend Date with respect to new rights rights, options or warrants with such rights (and a termination or expiration of in which case the existing rights rights, options or warrants shall be deemed to the extent not exercised terminate and expire on such date without exercise by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d12.02(c) or Section 12.08 was made, (a1) in the case of any such rights rights, options or warrants that shall all have been redeemed or repurchased purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall be readjusted upon as if such final redemption rights, options or repurchase warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase purchase price received by a holder or holders of Ordinary Shares Common Stock with respect to such rights rights, options or warrants (assuming such holder had retained such rights rights, options or warrants), made to all holders of Ordinary Shares Common Stock as of the date of such redemption or repurchasepurchase, and (b2) in the case of such rights rights, options or warrant warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights rights, options and warrants had not been issued. For purposes of Section 12.02(a), Section 12.02(b) and this Section 12.02(c), any dividend or distribution to which this Section 12.02(c) is applicable that also includes one or both of:
(A) a dividend or distribution of shares of Common Stock to which Section 12.02(a) is applicable (the “Clause A Distribution”); or
(B) a dividend or distribution of rights or warrants to which Section 12.02(b) is applicable (the “Clause B Distribution”), then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 12.02(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 12.02(c) with respect to such Clause C Distribution shall then be made, and (2) the Clause A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Section 12.02(a) and Section 12.02(b) with respect thereto shall then be made, except that, if determined by the Company (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the open of business on such Ex-Dividend Date or effective date” within the meaning of Section 12.02(a) or “outstanding immediately prior to the open of business on such Ex-Dividend Date” within the meaning of Section 12.02(b).
(ed) If any dividends cash dividend or other distributions by the Company consisting exclusively of cash distribution is made to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company)Common Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the open of business on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ ' = the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices Price of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Sharesits Common Stock. An adjustment to Notwithstanding the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m.foregoing, New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e)foregoing increase, each Holder of Notes a Security shall be entitled to receive receive, for each $1,000 principal amount of Securities, at the same time and upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversionthe same terms as holders of shares of the Common Stock, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior owned a number of shares of Common Stock equal to the record date Conversion Rate on the Ex-Dividend Date for determining the shareholders entitled to receive such cash dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or madeso paid, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not decreased to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(fe) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to make a payment in respect of a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”) (prior to giving effect to such tender or exchange offer); OS’ = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tende
Appears in 1 contract
Sources: Indenture (Group 1 Automotive Inc)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company as follows:
(a) If the Company issues Ordinary Shares to all or substantially all holders of Ordinary Shares as a dividend or distribution, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ ' = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and OS’ ' = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such dividend or distribution. If any dividend or distribution of the type described in this Section 12.03(a11.02(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company effects a subdivision or combination of Ordinary Shares, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; CR’ ' = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ ' = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii11.02(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ ' = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to such rights or warrants; and Z = the number of Ordinary Shares equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced. For purposes of this Section 12.03(c11.02(c), in determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable for such Ordinary Shares, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a11.02(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c11.02(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c11.02(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution.
(d) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
(i) any dividends or distributions referred to in Section 12.03(a11.02(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b11.02(b) above;
(iii) rights and warrants referred to in Section 12.03(c11.02(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d11.02(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d11.02(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e11.02(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ ' = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares over the 10 consecutive Trading Day period ending on on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value (as determined by the Board of Directors of the Company) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d11.02(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d11.02(d) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of shares of Capital Stock of any class or series, or similar Equity Interest, in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ ' = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment shall become occur immediately after the tenth Trading Day immediately following, and including, the effective immediately prior to 9:00 a.m., New York City time, on date of the ExSpin-Dividend Date for such distributionOff. If any such dividend or distribution described in this Section 12.03(d11.02(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.0211.01(c), if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d11.02(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d11.02(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d11.02(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d11.02(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d11.02(d), except as set forth under Section 12.0611.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10Section 11.06. In addition, except as set forth in Section 12.0611.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d11.02(d) or Section 12.08 11.06 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ ' = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e11.02(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e11.02(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d11.02(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(f) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ ' = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”) (prior to giving effect to such tender or exchange offer); OS’ ' = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tendet
Appears in 1 contract
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company as follows:
(a) If the Company issues Ordinary Shares to all or substantially all holders shares of Ordinary Shares Common Stock as a dividend or distributiondistribution on shares of the Common Stock, or effects a share split or share combination, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be; CR’ = the new Conversion Rate in effect on immediately after the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such dividend or distribution, or the effective date of such share split or share combination, as the case may be; and OS’ = the number of Ordinary Shares that would be shares of Common Stock outstanding immediately after, and solely as a result of, such dividend or distributionevent. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after (i) the Ex-Dividend Date for such dividend or distributiondistribution or (ii) the date on which such split or combination becomes effective, as applicable. If any dividend or distribution of the type described in this clause Section 12.03(a9.02(a) is declared but not so paid or made, the new Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company effects distributes to all holders of its Common Stock any rights or warrants entitling them to purchase, for a subdivision or combination period of Ordinary Sharesnot more than 45 days after the Ex-Dividend Date for the distribution, shares of Common Stock at a price per share less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the declaration date for such distribution, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding the effective date of Ex-Dividend Date for such subdivision or combinationdistribution; CR’ = the new Conversion Rate in effect on immediately after the effective date of Ex-Dividend Date for such subdivision or combinationdistribution; OS0 = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding Ex-Dividend Date for such distribution; X = the effective date total number of shares of Common Stock issuable pursuant to such subdivision rights or combinationwarrants; and OS’ Y = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, shares of Common Stock equal to the aggregate price payable to exercise such subdivision or combination. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than divided by the average of the Last Reported Sale Prices of the Ordinary Shares during Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to such rights or warrants; and Z = the number of Ordinary Shares equal to the quotient of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announceddistribution. For purposes of this clause Section 12.03(c9.02(b), in determining whether any rights or warrants entitle the Holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Prices, and in determining the aggregate exercise or conversion price payable for such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declaredDirectors. If any right or warrant described in this clause Section 12.03(c9.02(b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this clause Section 12.03(c9.02(b) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for the applicable distribution.
(dc) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, assets or property of the Company to all or substantially all the holders of the Ordinary SharesCommon Stock, excluding:
(i) any dividends or distributions referred as to in Section 12.03(awhich an adjustment applies under clause (a) or (b) above;
(ii) shares delivered dividends or distributions paid exclusively in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;cash; and
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(dclause (c) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such distribution; CR’ = the new Conversion Rate in effect on immediately after the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value (as determined by the Board of Directors of the CompanyDirectors) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, assets or assets, including securities, so distributed, expressed as an amount per Ordinary Shareproperty distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(dclause (c) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists Common Stock of shares of Capital Stock of any class or series, or similar Equity Interestequity interest, in of or relating to a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m.before 5:00 p.m., New York City time, on the Ex-Dividend Date tenth Trading Day immediately following, and including, the effective date of the distribution Spin-Off will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the tenth Trading Day immediately preceding following, and including, the Exeffective date of the Spin-Dividend Date for such distributionOff; CR’ = the new Conversion Rate in effect on immediately after the Extenth Trading Day immediately following, and including, the effective date of the Spin-Dividend Date for such distributionOff; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests equity interest distributed to holders of Ordinary Shares Common Stock applicable to one share of Ordinary Shares during Common Stock over the first 10 consecutive Trading Day period commencing onimmediately following, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during Common Stock over the first 10 consecutive Trading Day period commencing onimmediately following, and including, the effective date of the Spin-Off. Such adjustment shall become occur immediately after the tenth Trading Day immediately following, and including, the effective immediately prior date of the Spin-Off; provided that in respect of any conversion during the ten Trading Days following the effective date of any Spin-Off, references within the portion of this clause (c) related to 9:00 a.m., New York City time, on “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Exeffective date of such Spin-Dividend Date for such distributionOff and the relevant Conversion Date. If any such dividend or distribution described in this Section 12.03(dclause (c) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(fd) If the Company any cash dividend or any distribution is made to all holders of its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amendedCommon Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Expiration DateEx-Dividend Date for such distribution; CR’ = the new Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution; SP0 = the Last Reported Sale Price of the Common Stock on the Trading Day immediately following preceding the Expiration DateEx-Dividend Date for such distribution; AC and C = the Fair Market Value (as determined by the Board amount in cash per share of Directors Common Stock of the CompanyCompany distributes to holders of Common Stock. An adjustment to the Conversion Rate made pursuant to this clause (d) shall become effective immediately after the Ex-Dividend Date for the applicable dividend or distribution. If any dividend or distribution described in this clause (d) is declared but not so paid or made, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(e) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Last Reported Sale Price of the Common Stock on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before Trading Day next succeeding the last time date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at the close of business on the last Trading Day of the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires; CR’ = the new Conversion Rate in effect immediately following the last Trading Day of the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for shares purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the expiration of such tender or exchange offer; OS’ = the number of shares of Common Stock outstanding immediately after the expiration of such tender or exchange offer (the “Expiration Time”) (prior to after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); OSand SP’ = the average of the Last Reported Sale Prices of Common Stock over the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires. The adjustment to the Conversion Rate under this clause (e) shall become effective immediately following the tenth Trading Day next succeeding the date such tender or exchange offer expires; provided that, in respect of any conversion during the ten Trading Days following the date that any tender or exchange offer expires, references within this clause (e) to 10 Trading Days shall be deemed replaced with such lesser number of Ordinary Shares Trading Days as have elapsed between the date such tender or exchange offer expires and the relevant Conversion Date. If the Company or one of its Subsidiaries is obligated to purchase Common Stock pursuant to any such tender or exchange offer but are permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Conversion Rate shall be readjusted to be the Conversion Rate that would be in effect if such tender or exchange offer had not been made.
(f) Notwithstanding the foregoing provisions of this Section 9.02, no adjustment will be made thereunder, nor shall an adjustment be made to the ability of a Holder to convert, for any distribution described therein if the Holder will otherwise participate in the distribution on the same terms as holders of Common Stock as if such Holder held a number of shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of the Securities held by such holder, without having to convert its Securities. Further, if the application of the foregoing formulas in this Section 9.02 would result in a decrease in the Conversion Rate, no adjustment to the Conversion Rate will be made (except on account of share combinations).
(g) No adjustment to the Conversion Rate will be made unless as specifically set forth in this Section 9.02 and Section 9.03.
(h) Without limiting the foregoing, no adjustment to the Conversion Rate need be made:
(i) upon the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in shares of Common Stock under any plan;
(ii) upon the issuance of any shares of Common Stock or options or rights to purchase shares of Common Stock pursuant to any present or future employee, director or consultant benefit plan or program or employee stock purchase plan of or assumed by the Company or any of its Subsidiaries;
(iii) upon the issuance of any shares of Common Stock pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security not described in clause (ii) above and outstanding immediately as of the Issue Date;
(iv) for a change in the par value of the Common Stock; or
(v) for accrued and unpaid Interest (including Contingent Interest and Additional Interest, if any) on the Securities.
(i) No adjustment to the Conversion Rate will be required unless the adjustment would require an increase or decrease of at least 1% of the Conversion Rate. If the adjustment is not made because the adjustment does not change the Conversion Rate by at least 1%, then the adjustment that is not made will be carried forward and taken into account in any future adjustment. All required calculations will be made to the nearest cent or 1/1000th of a share, as the case may be. Notwithstanding the foregoing, if the Securities are called for redemption or, upon a Fundamental Change, all adjustments not previously made will be made for all the Securities to be converted after the Expiration Time Company’s notice of redemption to the applicable Redemption Date or after the Company’s notice of a Fundamental Change, as applicable.
(j) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officer’s Certificate setting forth the Conversion Rate after giving such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until a Responsible Officer of the Trustee shall have received such Officer’s Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has knowledge is still in effect. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Rate to the Holder of each Security at such Holder’s last address appearing on the Securities Register provided for in Section 2.04 of this First Supplemental Indenture within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
(k) For purposes of this Section 9.02, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. If the Company pays any dividend or makes any distribution on, or issues any rights, options or warrants in respect of, shares of Common Stock held in treasury by the Company, the Company shall not issue, transfer or convey such shares of Common Stock in a manner that would have the effect solely of circumventing the provisions of this Section 9.02.
(l) If Net-Share Settlement applies and any provision of this Article 9 requires a calculation of an average of the Daily VWAP over a span of multiple days, the Company will make appropriate adjustments to the Daily Settlement Amount (determined in good faith by the Board of Directors) to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the Ex-Dividend Date of the event occurs, at any time during the period from which such tendecalculation is to be calculated; provided that such adjustments shall only be made to the Daily Settlement Amounts relating to days prior to the date that the adjustment to the Conversion Rate becomes effective.
Appears in 1 contract
Sources: First Supplemental Indenture (Flotek Industries Inc/Cn/)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted from time to time by the Company as follows:
(a) If the Company issues Ordinary Shares to all or substantially all holders shares of Ordinary Shares Common Stock as a dividend or distributiondistribution on shares of Common Stock, or effects a subdivision or share combination of the Common Stock, the Conversion Rate will be adjusted based on the following formula: OS(1) CR(1) = CR(0) X ----- OS(0) where, CR0 CR(0) = the Conversion Rate in effect at 5:00 p.m., New York City time, the close of business on the Trading Day immediately preceding the Ex-Dividend Date for Date, or the effective date of such dividend share subdivision or distribution; CR’ share combination, as the case may be CR(1) = the Conversion Rate in effect on immediately after the Ex-Dividend Date for Date, or the effective date of such dividend share subdivision or distribution; OS0 share combination, as the case may be OS(0) = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for Date, or the effective date of such dividend share subdivision or distribution; and OS’ share combination, as the case may be
(1) = the number of Ordinary Shares shares of Common Stock that would be outstanding immediately after, and solely as a result of, after such dividend or distributionevent. Such adjustment shall become effective immediately prior to after 9:00 a.m., New York City time, on the Business Day following the Ex-Dividend Date Date, or effective date, as the case may be, for such share subdivision or share combination. The Company will not pay any dividend or distributionmake any distribution on shares of Common Stock held in treasury by the Company. If any dividend or distribution of the type described in this Section 12.03(a12.02(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company effects issues to all or substantially all holders of its Common Stock any rights or warrants entitling them for a subdivision period expiring 45 calendar days or combination less from the date of Ordinary Sharesissuance of such rights or warrants to purchase shares of Common Stock at a price per share less than the Current Market Price of the Common Stock, the Conversion Rate will be adjusted based on the following formula: formula (provided that the Conversion Rate will be readjusted to the extent that such rights or warrants are not exercised prior to their expiration): OS(0) + X CR(1) = CR(0) X --------- OS(0) + Y where, CR0 CR(0) = the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding the effective date of such subdivision or combination; CR’ Ex-Dividend Date CR(1) = the Conversion Rate in effect on immediately after the effective date of such subdivision or combination; OS0 Ex-Dividend Date OS(0) = the number of Ordinary Shares shares of Common Stock outstanding at 5:00 p.m., New York City time, on immediately prior to the Trading Ex-Dividend Date X = the total number of shares of Common Stock issuable pursuant to such rights Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights divided by the average of the Sale Prices of the Common Stock over the 10 consecutive Trading-Day period prior to the Business Day immediately preceding the effective date announcement of the issuance of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combinationrights. Such adjustment shall be successively made whenever any such rights or warrants are issued and shall become effective immediately prior to after 9:00 a.m., New York City time, on the date on which such split or combination becomes effective.
(c) If the Company issues to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Business Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for Date. The Company shall not issue any such issuance; CR’ = rights or warrants in respect of shares of Common Stock held in treasury by the Conversion Rate in effect on Company. To the Ex-Dividend Date for such issuance; OS0 = extent that shares of Common Stock are not delivered after the number expiration of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to such rights or warrants; and Z = , the number of Ordinary Shares equal Conversion Rate shall be readjusted to the quotient Conversion Rate that would then be in effect had the adjustments made upon the issuance of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending been made on the Trading Day immediately preceding basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such date fixed for the determination of stockholders entitled to receive such issuance was first publicly announcedrights or warrants had not been fixed. For purposes of this Section 12.03(c), in In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported such Sale PricesPrice, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Company's Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distributionDirectors.
(dc) If the Company distributes shares of Capital Stock (other than a distribution consisting solely of Common Stock), evidences of its indebtedness or other assets, including securities, assets of the Company to all or substantially all the holders of the Ordinary SharesCommon Stock, excluding:
(i) any dividends or distributions referred to in Section 12.03(aclause (a) or (b) above;; and
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to paid exclusively in Section 12.03(e) below. cash; then the Conversion Rate will be adjusted based on the following formula: SP(0) CR(1) = CR(0) X ----------- SP(0) - FMV where, CR0 CR(0) = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding prior to the Ex-Dividend Date for such distribution; CR’ CR(1) = the Conversion Rate in effect on immediately after the Ex-Dividend Date for such distribution; SP0 SP(0) = the average Current Market Price of the Last Reported Sale Prices of Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and Common Stock FMV = the Fair Market Value fair market value (as determined by the Company's Board of Directors of the CompanyDirectors) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, assets or assets, including securities, so distributed, expressed as an amount per Ordinary Shareproperty distributed with respect to each outstanding share of Common Stock on the Record Date for such distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Business Day following the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distributionDate. With respect to an adjustment pursuant to this Section 12.03(dclause (c) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists Common Stock of shares of Capital Stock of any class or series, or similar Equity Interestequity interests in, in a Subsidiary or other business unit (a “Spin"SPIN-Off”OFF"), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at before 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date effective date for such distribution; CR’ Spin-Off will be increased based on the following formula: FMV(0) + MP(0) CR(1) = CR(0) X -------------- MP(0) where, CR(0) = the Conversion Rate in effect at the close of business on the Ex-Dividend Date for such distribution; FMV0 CR(1) = the Conversion Rate in effect immediately after the Ex-Dividend Date FMV(0) = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests equity interest distributed to holders of Ordinary Shares Common Stock applicable to one share of Ordinary Shares during Common Stock over the 10 consecutive Trading Trading-Day period commencing on, on and including, including the effective date of fifth Trading Day after the SpinEx-Off; and MP0 Dividend Date MP(0) = the average of the Last Reported Sale Prices of Ordinary Shares during Common Stock over the 10 consecutive Trading Trading-Day period commencing on, on and including, including the effective date of fifth Trading Day after the SpinEx-OffDividend Date. Such adjustment shall become effective occur immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for final Trading Day of such distribution. 10 Trading Day period.
(d) If any such dividend or distribution described in this Section 12.03(d) consisting exclusively of cash is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company made to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company)Common Stock, the Conversion Rate will be adjusted based on the following formula: SP(0) CR(1) = CR(0) X --------- SP(0) - C where, CR0 CR(0) = the Conversion Rate in effect at the close of business on the Ex-Dividend Date CR(1) = the Conversion Rate in effect immediately after the Ex-Dividend Date SP(0) = the Current Market Price of the Common Stock C = the amount of cash per share the Company distributes to holders of Common Stock Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Record Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares provided that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not so paid or made, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(fe) If the Company or any of its Subsidiaries makes purchases Ordinary Shares of Common Stock pursuant to a tender offer or exchange offer made for Common Stock by the Company or any of its Subsidiaries for all or any portion of the Ordinary SharesSubsidiaries, to the extent that the Fair Market Value (as determined below) of the cash and value of any other consideration included in the payment per Ordinary Share, share of Common Stock exceeds the Last reported Sale Price of Ordinary Shares the Common Stock on the Trading Day immediately after next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (such last date, the “Expiration Date”"EXPIRATION DATE"), as it may be amended, the Conversion Rate will be adjusted increased based on the following formula: 77 FMV + (SP(1) X OS(1)) CR(1) = CR(0) X --------------------- OS(0) X SP(1) where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ CR(0) = the Conversion Rate in effect on the Trading Day Expiration Date CR(1) = the Conversion Rate in effect immediately following after the Expiration Date; AC Date FMV = the Fair Market Value (as determined by the Company's Board of Directors of the CompanyDirectors) on the Expiration Date, of the aggregate value of all cash and any other consideration paid or payable for the Ordinary Shares shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 Date (the "PURCHASED SHARES") OS(0) = the number of Ordinary Shares shares of Common Stock outstanding immediately before after the Expiration Date less any Purchased Shares
(1) = the number of shares of Common Stock outstanding immediately after the Expiration Date, including any Purchased Shares SP(1) = the Sale Price of Common Stock on the Trading Day next succeeding the Expiration Date. If the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made.
(f) If a Person other than the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer in which, as of the Expiration Date, the Company's Board of Directors is not recommending rejection of the offer, the Conversion Rate will be increased based on the following formula: FMV + (SP(1) X OS(1)) CR(1) = CR(0) X --------------------- OS(0) X SP(1) where, CR(0) = the Conversion Rate in effect on the Expiration Date CR(1) = the Conversion Rate in effect immediately after the Expiration Date FMV = the Fair Market Value (as determined by the Company's Board of Directors) of the aggregate consideration payable to the Company's shareholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Date OS(0) = the number of shares of Common Stock outstanding immediately after the Expiration Date, including any Purchased Shares
(1) = the number of shares of Common Stock outstanding immediately after the Expiration Date less any Purchased Shares SP(1) = the Sale Prices of Common Stock on the Trading Day next succeeding the Expiration Date The adjustment referred to in this clause (f) will only be made if:
(a) the tender offer or exchange offer is for an amount that increases the offeror's ownership of Common Stock to more than 25% of the total shares of Common Stock outstanding; and
(b) the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Sale Price of the Common Stock on the Trading Day next succeeding the last time date on which tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”) (prior to giving effect to such tender or exchange offer); OS’ = . However, the number adjustment referred to in this clause (f) will not be made if as of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely closing of the offer, the offering documents disclose a plan or an intention to such tendecause the Company to engage in a consolidation or merger or a sale of the consolidated assets of the Company and the Company's Subsidiaries substantially as an entirety.
Appears in 1 contract
Sources: Indenture (King Pharmaceuticals Inc)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company from time to time, without duplication, as follows:
(a) If In case the Company issues Ordinary Shares to all shall (i) pay a dividend, or substantially all holders make a distribution, on its outstanding Common Stock exclusively in shares of Ordinary Shares as Common Stock; (ii) subdivide its outstanding Common Stock into a dividend greater number of shares; (iii) combine its outstanding Common Stock into a smaller number of shares; or distribution(iv) reclassify its Common Stock, the Conversion Rate will shall be adjusted based on so that the following formula: where, CR0 = same shall equal the rate determined by multiplying the Conversion Rate in effect at 5:00 p.m., New York City time, immediately prior to the opening of business on the Trading Day day immediately following (A) the applicable record date, in the case of any such dividend or other distribution or (B) the applicable effective date, in the case of any such subdivision, combination or reclassification, by a fraction, of which:
(1) the numerator shall be the sum of:
(a) the number of shares of Common Stock outstanding at the close of business on (I) the record date fixed for the determination of stockholders entitled to receive such dividend or other distribution or (II) on the day immediately preceding the Ex-Dividend Date for effective date of such subdivision, combination or reclassification, as applicable,
(b) plus (i) the total number of shares of Common Stock constituting such dividend or other distribution or (ii) the increase in the number of shares of Common Stock (or minus the decrease in the number of shares of Common Stock) to be effected by such subdivision, combination or reclassification; and
(2) the denominator shall be the number of shares of Common Stock outstanding at the close of business on (a) such record date, in the case of any such dividend or other distribution or (b) the day immediately preceding the effective date of such subdivision, combination or reclassification, in the case of any such subdivision, combination or reclassification. An adjustment made pursuant to this Section 7.06(a) shall become effective immediately after the open of business on the day immediately following the applicable record date, in the case of any such dividend or distribution; CR’ = , or immediately after the Conversion Rate in effect on the Ex-Dividend Date for applicable effective date of any such dividend subdivision, combination or distribution; OS0 = the number reclassification of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distribution. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such dividend or distributionCommon Stock. If any dividend or distribution of the type described in clause (i) of the first sentence of this Section 12.03(a7.06(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared.
(b) If In case the Company effects shall issue rights or warrants to all holders of the Common Stock entitling them (for a subdivision period expiring within 60 days after the date of issuance of such rights or combination warrants) to subscribe for or purchase Common Stock at a price per share less than the Market Price per share of Ordinary SharesCommon Stock on the record date fixed for determination of shareholders entitled to receive such rights or warrants, the Conversion Rate will shall be adjusted based on so that the following formula: where, CR0 = same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the open of business on the day immediately following such record date by a fraction of which (i) the numerator shall be the number of shares of Common Stock outstanding at 5:00 p.m.the close of business on such record date plus the number of additional shares of Common Stock offered for subscription or purchase, New York City time, and (ii) the denominator shall be the number of shares of Common Stock outstanding at the close of business on such record date plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at the Market Price per share of Common Stock on the earlier of such record date or the Trading Day immediately preceding the effective ex date for such issuance of such subdivision rights or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combinationwarrants. Such adjustment shall be made successively whenever any such rights or warrants are issued and shall become effective immediately prior to 9:00 a.m., New York City time, after the opening of business on the day immediately following the record date on which such split or combination becomes effective.
(c) If for the Company issues determination of shareholders entitled to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to receive such rights or warrants; and Z = . To the number extent that shares of Ordinary Shares equal Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall be readjusted to the quotient Conversion Rate which would then be in effect had the adjustments made upon the issuance of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending been made on the Trading Day immediately preceding basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such record date for the determination of shareholders entitled to receive such issuance was first publicly announcedrights or warrants had not been fixed. For purposes of this Section 12.03(c), in In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Pricessuch Market Price, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereofwarrants, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any rights or warrants of the type described in this Section 12.03(a) are not so issued, the Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, to the Conversion Rate that would then be in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distributionDirectors.
(d) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
(i) any dividends or distributions referred to in Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = the average of the Last Reported Sale Prices of Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the Fair Market Value (as determined by the Board of Directors of the Company) on the Ex-Dividend Date for such distribution of the shares of Capital Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable distribution. If “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), other than in respect to a Public Spin-Off, in lieu of the adjustment described in this Section 12.03(d), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) where there has been a payment of a dividend or other distribution on the Ordinary Shares consists of shares of Capital Stock of any class or series, or similar Equity Interest, in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(f) If the Company or any of its Subsidiaries purchases Ordinary Shares pursuant to a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included in the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”) (prior to giving effect to such tender or exchange offer); OS’ = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tende
Appears in 1 contract
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company from time to time, without duplication, as follows:
(a) If In case the Company issues Ordinary Shares to all Issuer shall: (i) pay a dividend, or substantially all holders of Ordinary Shares as make a dividend or distribution, the Conversion Rate will be adjusted based exclusively in shares of its capital stock, on the following formula: whereCommon Stock; (ii) subdivide its outstanding Common Stock into a greater number of shares; (iii) combine its outstanding Common Stock into a smaller number of shares; or (iv) reclassify its Common Stock, CR0 = the Conversion Rate in effect at 5:00 p.m.immediately prior to the record date or effective date, New York City timeas the case may be, on for the Trading Day immediately preceding adjustment pursuant to this Section 6.06(a) as described below, shall be adjusted so that the Ex-Dividend Date Holder of any 2024 Notes thereafter surrendered for such dividend or distribution; CR’ = conversion shall be entitled to receive the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; OS0 = the cash and number of Ordinary Shares outstanding at 5:00 p.m.shares of Common Stock of the Issuer which such Holder would have owned or have been entitled to receive after the happening of any of the events described above had such 2024 Notes been converted immediately prior to such record date or effective date, New York City time, on as the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distributioncase may be. Such An adjustment made pursuant to this Section 6.06(a) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for such applicable record date in the case of a dividend or distributiondistribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or reclassification of the Issuer’s Common Stock. If any dividend or distribution of the type described in this Section 12.03(aclause (i) above is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared.
(b) If In case the Company effects Issuer shall issue rights or warrants to all holders of the Common Stock entitling them (for a subdivision period expiring within 60 days after the date of issuance of such rights or combination warrants) to subscribe for or purchase Common Stock at a price per share less than the Market Price per share of Ordinary Shares, the Conversion Rate will be adjusted based Common Stock on the following formula: whererecord date fixed for determination of shareholders entitled to receive such rights or warrants, CR0 = the Conversion Rate in effect immediately after such record date shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately after such record date by a fraction of which (i) the numerator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at 5:00 p.m., New York City time, the Market Price per share of Common Stock on the earlier of such record date or the Trading Day immediately preceding the effective ex date for such issuance of such subdivision rights or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combinationwarrants. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately prior to 9:00 a.m., New York City time, after the opening of business on the day following the record date on which such split or combination becomes effective.
(c) If for the Company issues determination of shareholders entitled to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to receive such rights or warrants; and Z = . To the number extent that shares of Ordinary Shares equal Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall be readjusted to the quotient Conversion Rate which would then be in effect had the adjustments made upon the issuance of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending been made on the Trading Day immediately preceding basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such record date for the determination of shareholders entitled to receive such issuance was first publicly announcedrights or warrants had not been fixed. For purposes of this Section 12.03(c), in In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Pricessuch Market Price, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company Issuer for such rights or warrants and any amount payable on exercise or conversion thereofwarrants, with the value of such consideration, if other than cash, to be determined by the Board of Directors Directors.
(c) In case the Issuer shall, by dividend or otherwise, distribute to all holders of the Company. If Common Stock any assets, debt securities or rights or warrants to purchase any of its securities (excluding (i) any dividend, distribution or issuance covered by those referred to in Section 6.06(a) or Section 6.06(b) hereof and (ii) any dividend or distribution paid exclusively in cash) (any of the type described foregoing hereinafter in this Section 12.03(a6.06(c) are called the “Distributed Assets or Securities”) in an aggregate amount per share of Common Stock that, combined together with the aggregate amount of any other such distributions to all holders of its Common Stock made within the 12 months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to this Section 6.06(c) has been made, exceeds 15% of the Market Price on the Trading Day immediately preceding the declaration of such distribution, then the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the record date mentioned below by a fraction of which (A) the numerator shall be the Market Price per share of the Common Stock on the earlier of such record date or the Trading Day immediately preceding the ex date for such dividend or distribution, and (B) the denominator shall be (1) the Market Price per share of the Common Stock on the earlier of such record date or the Trading Day immediately preceding the ex date for such dividend or distribution less (2) the Fair Market Value on the earlier of such record date or the Trading Day immediately preceding the ex date for such dividend or distribution (as determined by the Board of Directors, whose determination shall be conclusive, and described in a certificate filed with the Trustee and the Paying Agent) of the Distributed Assets or Securities so distributed applicable to one share of Common Stock. Such adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution; provided, however, that, if (i) the Fair Market Value of the portion of the Distributed Assets or Securities so distributed applicable to one share of Common Stock is equal to or greater than the Market Price of the Common Stock on the record date for the determination of shareholders entitled to receive such distribution or (ii) the Market Price of the Common Stock on the record date for the determination of shareholders entitled to receive such distribution is greater than the Fair Market Value per share of such Distributed Assets or Securities by less than $1.00, then, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion, in addition to the cash and shares of Common Stock, the kind and amount of assets, debt securities, or rights or warrants comprising the Distributed Assets or Securities the Holder would have received had such Holder converted such 2024 Notes immediately prior to the record date for the determination of shareholders entitled to receive such distribution. In the event that such distribution is not so issuedpaid or made, the applicable Conversion Rate shall again be readjusted, effective as of the date the Company publicly announces not to issue such rights or warrants, adjusted to the Conversion Rate that which would then be in effect if such issuance distribution had not been declared. If any right .
(d) In case the Issuer shall declare a cash dividend or warrant described in this Section 12.03(c) is not exercised cash distribution to all or converted prior to the expiration substantially all of the exercisability or convertibility thereofholders of Common Stock, the Conversion Rate shall be readjusted to increased so that the applicable Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any adjustment made pursuant to this Section 12.03(c) shall become effective immediately prior to 9:00 a.m., New York City time, on equal the Ex-Dividend Date for the applicable distribution.
(d) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
(i) any dividends or distributions referred to in Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = price determined by multiplying the Conversion Rate in effect at 5:00 p.m., New York City time, on immediately prior to the Trading Day immediately preceding the Ex-Dividend Date record date for such distribution; CR’ = dividend or distribution by a fraction, (i) the Conversion Rate in effect on the Ex-Dividend Date for such distribution; SP0 = numerator of which shall be the average of the Last Reported Sale Prices Price of Ordinary Shares over the 10 Common Stock for the five consecutive Trading Day period Days ending on the Trading Day immediately preceding the Exrecord date for such dividend or distribution (the “Pre-Dividend Date for such distribution; Sale Price”) and FMV = (ii) the Fair Market Value (as determined by denominator of which shall be the Board of Directors of the Company) on the ExPre-Dividend Date for Sale Price, minus the full amount of such cash dividend or cash distribution applicable to one share of Common Stock (the shares of Capital Stock“Dividend Adjustment Amount”), evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such with such adjustment shall to become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date record date for such dividend or distribution; provided that if the applicable distribution. If “FMV” denominator of the foregoing fraction is less than $1.00 (as defined above) is equal to or greater than “SP0” (as defined aboveincluding a negative amount), other than in respect to a Public Spin-Off, then in lieu of the adjustment described in this Section 12.03(d)foregoing adjustment, adequate provision shall be made so that each Holder of Notes shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, the cash payable on and Common Stock issuable upon such conversion, the kind and amount of assets (including cash), shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s securities, as applicable, that cash such Holder would have received if had such Holder had converted such Notes its 2024 Note solely into Common Stock at the then applicable Conversion Rate immediately prior to the record date for determining the shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this Section 12.03(d) where there has been a payment of a cash dividend or other distribution on the Ordinary Shares consists of shares of Capital Stock of any class or series, or similar Equity Interest, in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed on the Nasdaq Stock Market, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date of the distribution will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such cash distribution. If any such cash dividend or cash distribution described in this Section 12.03(d) is declared but not so paid or made, the applicable Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will again be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the record date for determining the shareholders entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(d) is declared but not paid or made, the Conversion Rate shall be readjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(fe) If the Company a Holder elects to convert 2024 Notes in connection with a corporate transaction as described in Section 2.04(e) hereof that occurs on or any of its Subsidiaries purchases Ordinary Shares pursuant prior to December 1, 2011, that constitutes a tender offer or exchange offer made by the Company or any of its Subsidiaries for all or any portion Fundamental Change (other than as described in clause (iv) of the Ordinary Shares, to the extent that definition of Fundamental Change) and 10% or more of the Fair Market Value (as determined below) of the cash and any other consideration included in for the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value Common Stock (as determined by the Board of Directors Directors, whose determination shall be conclusive evidence of such Fair Market Value) in the Companycorporate transaction consists of (i) cash, (ii) other property or (iii) securities that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Expiration DateNasdaq National Market, of then the aggregate value of all Conversion Rate for the 2024 Notes surrendered for conversion by such Holder shall be adjusted so that such Holder will be entitled to receive cash and other consideration paid or payable for shares of Common Stock equal to the Ordinary Shares validly tendered or exchanged sum of (A) the Conversion Value and not withdrawn as of the Expiration Date; OS0 = (B) the number of Ordinary additional shares of Common Stock (the “Additional Shares”) determined in the manner set forth below, subject in each case to the Issuer’s payment elections as described in Section 6.13 hereof. For the avoidance of doubt, the adjustment provided for in this Section 6.06(e) shall only be made with respect to the 2024 Notes being converted in connection with such Fundamental Change and shall not be effective as to any 2024 Notes not so converted. The number of Additional Shares outstanding will be determined by reference to the table below, based on the date on which such corporate transaction becomes effective (the “Effective Date”) and the Share Price; provided that if the Share Price is between two Share Price amounts in the table below or the Effective Date is between two Effective Dates in the table below, the number of Additional Shares will be determined by a straight-line interpolation between the number of Additional Shares set forth for the higher and lower Share Price amounts and the two dates, as applicable, based on a 365-day year. The Share Prices set forth in the first row of the table below (i.e., column headers) will be adjusted as of any date on which the applicable Conversion Rate of the 2024 Notes is adjusted pursuant to this Section 6.06. The adjusted Share Prices will equal the Share Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Share Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The following table sets forth the hypothetical Share Price and number of Additional Shares to be received per $1,000 principal amount of 2024 Notes: December 13, 2004. 30.5 28.1 24.1 20.9 18.3 16.2 14.4 13.0 11.7 10.7 9.8 6.7 5.0 3.1 0.0 December 1, 2005 30.5 27.3 23.2 19.9 17.3 15.2 13.4 12.0 10.8 9.8 9.0 6.2 4.6 3.0 0.0 December 1, 2006 30.5 27.0 22.6 19.2 16.4 14.3 12.5 11.1 9.9 8.9 8.1 5.5 4.1 2.7 0.0 December 1, 2007 30.5 26.6 21.9 18.3 15.4 13.2 11.4 10.0 8.8 7.9 7.1 4.6 3.4 2.3 0.0 December 1, 2008 30.5 26.0 21.0 17.1 14.1 11.8 10.0 8.6 7.4 6.5 5.8 3.7 2.7 1.8 0.0 December 1, 2009 30.5 25.3 19.8 15.7 12.5 10.1 8.3 6.9 5.8 5.0 4.3 2.7 2.0 1.4 0.0 December 1, 2010 30.5 24.4 18.2 13.5 10.0 7.5 5.7 4.5 3.6 3.0 2.5 1.6 1.2 0.9 0.0 December 1, 2011 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 The Share Prices and Additional Share amounts set forth above are based upon an initial Conversion Rate per share of 67.7966 per $1,000 principal amount of 2024 Notes. If the Share Price is equal to or in excess of $50.00 per share (subject to adjustment), no Additional Shares will be issued upon conversion. If the Share Price is less than $10.17 per share (subject to adjustment), no Additional Shares will be issued upon conversion. Notwithstanding the foregoing, any adjustment to the applicable Conversion Rate relating to the issuance of Additional Shares as described in this Section 6.06(e) will not exceed the Maximum Conversion Rate.
(f) Notwithstanding the foregoing, in the case of a Public Acquirer Change of Control, the Issuer may, in lieu of increasing the applicable Conversion Rate by Additional Shares as described in Section 6.06(e) hereof, elect to adjust the applicable Conversion Rate and the related conversion obligation such that upon conversion the Issuer will deliver cash and a number of shares of Public Acquirer Common Stock such that the Conversion Rate in effect immediately before the last time tenders or exchanges may Public Acquirer Change of Control shall be made pursuant to such tender or exchange offer adjusted by a fraction:
(i) the “Expiration Time”) (numerator of which will be the average of the Last Reported Sale Price of the Common Stock for the five consecutive Trading Days prior to giving effect to but excluding the effective date of such tender or exchange offer)Public Acquirer Change of Control; OS’ = and
(ii) the number denominator of Ordinary Shares outstanding immediately after which will be the Expiration Time (after giving effect solely to average of the Last Reported Sale Price of the Public Acquirer Common Stock for the five consecutive Trading Days commencing on the Trading Day next succeeding the effective date of such tendePublic Acquirer Change of Control.
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Sources: Seventeenth Supplemental Indenture (CMS Energy Corp)
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company from time to time, without duplication, as follows:
(a) If In case the Company issues Ordinary Shares to all shall (i) pay a dividend, or substantially all holders of Ordinary Shares as make a dividend or distribution, the Conversion Rate will be adjusted based on the following formula: whereCommon Stock exclusively in shares of Common Stock or other capital stock of the Company; (ii) subdivide its outstanding Common Stock into a greater number of shares; (iii) combine its outstanding Common Stock into a smaller number of shares; or (iv) reclassify its Common Stock, CR0 = the Conversion Rate in effect at 5:00 p.m.immediately prior to the record date or effective date, New York City timeas the case may be, on for the Trading Day immediately preceding adjustment pursuant to this Section 7.06(a) as described below, shall be adjusted so that the Ex-Dividend Date Holder of any Notes thereafter surrendered for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; OS0 = conversion shall be entitled to receive the number of Ordinary Shares outstanding at 5:00 p.m.shares of Common Stock of the Company which such Holder would have owned or have been entitled to receive after the happening of any of the events described above had such Notes been converted immediately prior to such record date or effective date, New York City time, on as the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such dividend or distributioncase may be. Such An adjustment made pursuant to this Section 7.06(a) shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date for such applicable record date in the case of a dividend or distributiondistribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or reclassification of the Common Stock. If any dividend or distribution of the type described in this Section 12.03(aclause (i) above is declared but not so paid or made, the Conversion Rate shall again be adjusted, effective as of the date the Company publicly announces not to make such dividend or distribution, adjusted to the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared.
(b) If In case the Company effects shall issue rights or warrants to all holders of the Common Stock entitling them (for a subdivision period expiring within 60 days after the date of issuance of such rights or combination warrants) to subscribe for or purchase Common Stock at a price per share less than the Market Price per share of Ordinary Shares, the Conversion Rate will be adjusted based Common Stock on the following formula: whererecord date fixed for determination of shareholders entitled to receive such rights or warrants, CR0 = the Conversion Rate in effect immediately after such record date shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately after such record date by a fraction of which (i) the numerator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered for subscription or purchase, and (ii) the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of shares which the aggregate offering price of the total number of shares so offered would purchase at 5:00 p.m., New York City time, the Market Price per share of Common Stock on the earlier of such record date or the Trading Day immediately preceding the effective ex date for such issuance of such subdivision rights or combination; CR’ = the Conversion Rate in effect on the effective date of such subdivision or combination; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the effective date of such subdivision or combination; and OS’ = the number of Ordinary Shares that would be outstanding immediately after, and solely as a result of, such subdivision or combinationwarrants. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately prior to 9:00 a.m., New York City time, after the opening of business on the day following the record date on which such split or combination becomes effective.
(c) If for the Company issues determination of shareholders entitled to all or substantially all the holders of Ordinary Shares any rights or warrants (other than pursuant to any rights plan described in Section 12.03(d)(iii) below) entitling them to purchase, for a period of not more than 45 calendar days after the date of the announcement for such issuance, Ordinary Shares at an aggregate price per share less than the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date such issuance was first publicly announced, then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such issuance; OS0 = the number of Ordinary Shares outstanding at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such issuance; Y = the total number of Ordinary Shares issuable pursuant to receive such rights or warrants; and Z = . To the number extent that shares of Ordinary Shares equal Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall be readjusted to the quotient Conversion Rate which would then be in effect had the adjustments made upon the issuance of (x) the aggregate price payable to exercise such rights or warrants divided by (y) the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period ending been made on the Trading Day immediately preceding basis of delivery of only the number of shares of Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such record date for the determination of shareholders entitled to receive such issuance was first publicly announcedrights or warrants had not been fixed. For purposes of this Section 12.03(c), in In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase Ordinary Shares shares of Common Stock at less than the average of the applicable Last Reported Sale Pricessuch Market Price, and in determining the aggregate exercise or conversion offering price payable for of such Ordinary Sharesshares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereofwarrants, with the value of such consideration, if other than cash, to be determined by the Board of Directors Directors.
(c) In case the Company shall, by dividend or otherwise, distribute to all holders of the Company. If Common Stock any assets, debt securities or rights or warrants to purchase any of its securities (excluding (i) any dividend, distribution or issuance covered by those referred to in Section 7.06(a) or 7.06(b), and (ii) any dividend or distribution paid exclusively in cash) (any of the type described foregoing hereinafter in this Section 12.03(a7.06(c) are not so issuedcalled the "Distributed Assets or Securities") in an aggregate amount per share of Common Stock that, combined together with the Conversion Rate shall again be readjusted, effective as aggregate amount of any other such distributions to all holders of its Common Stock made within the 12 months preceding the date the Company publicly announces not to issue of payment of such rights or warrantsdistribution, to the Conversion Rate that would then be and in effect if such issuance had not been declared. If any right or warrant described in this Section 12.03(c) is not exercised or converted prior to the expiration respect of the exercisability or convertibility thereof, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right or warrant had not been so issued. Any which no adjustment made pursuant to this Section 12.03(c7.06(c) shall become effective immediately prior to 9:00 a.m.has been made, New York City time, on the Ex-Dividend Date for the applicable distribution.
(d) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets, including securities, exceeds 10% of the Company to all or substantially all the holders of the Ordinary Shares, excluding:
(i) any dividends or distributions referred to in Section 12.03(a) above;
(ii) shares delivered in connection with subdivisions of Ordinary Shares referred to in Section 12.03(b) above;
(iii) rights and warrants referred to in Section 12.03(c) above;
(iv) Spin-Offs to which the provisions set forth below in this Section 12.03(d) shall apply;
(v) the rights or warrants referred to in this Section 12.03(d) below (to the extent and as specified therein); and
(vi) dividends or distributions referred to in Section 12.03(e) below. then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, Market Price on the Trading Day immediately preceding the Ex-Dividend Date for declaration of such distribution; CR’ = , then, the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the Ex-Dividend Date for such distribution; SP0 = record date mentioned below by a fraction of which (A) the average numerator shall be the Market Price per share of the Last Reported Sale Prices Common Stock on the earlier of Ordinary Shares over the 10 consecutive Trading Day period ending on such record date or the Trading Day immediately preceding the Ex-Dividend Date ex date for such dividend or distribution; , and FMV = (B) the denominator shall be (1) the Market Price per share of the Common Stock on the earlier of such record date or the Trading Day immediately preceding the ex date for such dividend or distribution less (2) the Fair Market Value on the earlier of such record date or the Trading Day immediately preceding the ex date for such dividend or distribution (as determined by the Board of Directors Directors, whose determination shall be conclusive, and described in a certificate filed with the Trustee and the Paying Agent) of the Company) on the Ex-Dividend Date for such distribution Distributed Assets or Securities so distributed applicable to one share of the shares of Capital Common Stock, evidences of indebtedness, or assets, including securities, so distributed, expressed as an amount per Ordinary Share. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on after the Ex-Dividend Date record date for the determination of shareholders entitled to receive such distribution; provided, however, that, if (i) the Fair Market Value of the portion of the Distributed Assets or Securities so distributed applicable distribution. If “FMV” (as defined above) to one share of Common Stock is equal to or greater than “SP0” the Market Price of the Common Stock on the record date for the determination of shareholders entitled to receive such distribution or (as defined above)ii) the Market Price of the Common Stock on the record date for the determination of shareholders entitled to receive such distribution is greater than the Fair Market Value per share of such Distributed Assets or Securities by less than $1.00, other than in respect to a Public Spin-Offthen, in lieu of the adjustment described in this Section 12.03(d)foregoing adjustment, adequate provision shall be made so that each Holder of Notes shall be entitled have the right to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversionthe shares of Common Stock, the kind and amount of assets (including cash)assets, shares of Capital Stock, evidences of indebtedness, securities or rights, warrants or options to purchase the Company’s debt securities, as applicable, that such or rights or warrants comprising the Distributed Assets or Securities the Holder would have received if had such Holder had converted such Notes immediately prior to the record date for determining the determination of shareholders entitled to receive such distribution. With respect In the event that such distribution is not so paid or made, the Conversion Rate shall again be adjusted to an adjustment pursuant to this Section 12.03(dthe Conversion Rate which would then be in effect if such distribution had not been declared.
(d) where there has been a payment of a In case the Company shall make any distributions, by dividend or otherwise, consisting exclusively of cash to all holders of outstanding shares of Common Stock in an aggregate amount that, together with (i) all other all-cash distributions made to all holders of outstanding shares of Common Stock during the twelve months immediately preceding the date of such dividend or distribution on and (ii) any cash and the Ordinary Shares consists Fair Market Value, as of the expiration of any tender or exchange offer (other than consideration payable in respect of any odd-lot tender offer) of consideration payable in respect of any tender or exchange offer by the Company or any of the Company's Subsidiaries for all or any portion of shares of Capital Common Stock concluded during the twelve months immediately preceding the date of any class such dividend or seriesdistribution, or similar Equity Interest, in a Subsidiary or other business unit (a “Spin-Off”), that are, or, when issued, will be, traded or listed exceeds 10% of the product of the Market Price on the Nasdaq Record Date with respect to such distribution times the number of shares of Common Stock Marketoutstanding on such date, then, and in each such case, the New York Stock Exchange or any other U.S. national securities exchange or market (a “Public Spin-Off”), then Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately prior to 9:00 a.m., New York City time, the close of business on the Ex-Dividend Date record date fixed for the determination of holders of Common Stock entitled to receive such distribution by a fraction of which (A) the numerator shall be the Market Price per share of the distribution will be increased based Common Stock on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on earlier of such record date or the Trading Day immediately preceding the Ex-Dividend Date ex date for such distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such distribution; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar Equity Interests distributed to holders of Ordinary Shares applicable to one share of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Ordinary Shares during the 10 consecutive Trading Day period commencing on, and including, the effective date of the Spin-Off. Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for such distribution. If any such dividend or distribution and (B) the denominator shall be (1) the Market Price per share of Common Stock on the earlier of such record date or the Trading Day immediately preceding the ex date for such dividend or distribution less (2) an amount equal to the quotient of (x) the combined amount distributed or payable in the transactions described in this clauses (i), (ii) and (iii) above during such twelve-month period and (y) the number of shares of Common Stock outstanding on such record date, such adjustment to become effective immediately after the record date for the determination of shareholders entitled to receive such distribution.
(e) With respect to Section 12.03(d7.06(c) is declared but not paid above, in the event that the Company makes any distribution to all holders of Common Stock consisting of Equity Interests in a Subsidiary or madeother business unit of the Company, the Conversion Rate shall be readjusted, effective as of adjusted so that the date the Company publicly announces not to make such dividend or distribution, to be same shall equal the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the delivery requirements set forth under Section 12.02, if an adjustment to the Conversion Rate is required pursuant to this Section 12.03(d) during any settlement period in respect of Notes that have been tendered for conversion, delivery of the related conversion consideration will be delayed to the extent necessary in order to complete the calculations provided for in this Section 12.03(d). For purposes of Conversion Rate adjustments pursuant to this Section 12.03(d), rights or warrants distributed determined by the Company to all or substantially all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of Conversion Rate adjustments pursuant to this Section 12.03(d) and no adjustment to the Conversion Rate will be required until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.03(d), except as set forth under Section 12.06. If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase or exchangeable for additional or different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Trigger Event with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants to the extent not exercised by any of the holders thereof), except as set forth in Sections 12.08 and 12.10. In addition, except as set forth in Section 12.06, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.03(d) or Section 12.08 was made, (a) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (b) in the case of such rights or warrant that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(e) If any dividends or other distributions by the Company consisting exclusively of cash to all or substantially all holders of Ordinary Shares (other than dividends or distributions made in connection with liquidation, dissolution or winding-up of the Company), the Conversion Rate will be adjusted based on the following formula: where, CR0 = multiplying the Conversion Rate in effect at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; CR’ = the Conversion Rate in effect on the Ex-Dividend Date for such dividend or distribution; SP0 = the average of the Last Reported Sale Prices of the Ordinary Shares during the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share of Ordinary Shares that the Company pays as a dividend or otherwise distributes to holders of Ordinary Shares. An adjustment to the Conversion Rate made pursuant to this Section 12.03(e) shall become effective immediately prior to 9:00 a.m., New York City time, on the Ex-Dividend Date for the applicable dividend or distribution. If “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the adjustment described in this Section 12.03(e), each Holder of Notes shall be entitled to receive upon conversion, in addition to Ordinary Shares, and, if applicable, cash payable on conversion, the amount of cash that such Holder would have received if such Holder had converted such Notes immediately prior to the close of business on the record date fixed for determining the shareholders determination of holders of Common Stock entitled to receive such dividend or distribution. If any such dividend or distribution described in this Section 12.03(dby a fraction of which (i) is declared but not paid or made, the Conversion Rate numerator shall be readjusted, effective as (x) the Spin-off Market Price per share of the Common Stock on such record date plus (y) the Spin-off Market Price per Equity Interest of the Subsidiary or other business unit of the Company publicly announces not to make on such dividend or distribution, to record date and (ii) the denominator shall be the Conversion Rate that would then be Spin-off Market Price per share of the Common Stock on such record date, such adjustment to become effective 10 Trading Days after the effective date of such distribution of Equity Interests in effect if such dividend a Subsidiary or distribution had not been declaredother business unit of the Company.
(f) If Upon conversion of the Notes, the Holders shall receive, in addition to the Common Stock issuable upon such conversion, the rights issued under the Rights Plan or under any future shareholder rights plan the Company adopts (notwithstanding the occurrence of an event causing such rights to separate from the Common Stock at or any prior to the time of its Subsidiaries purchases Ordinary Shares conversion) unless, prior to conversion, the rights have expired, terminated or been redeemed or exchanged in accordance with the Rights Plan. If, and only if, the Holders of Notes receive rights under such shareholder rights plans as described in the preceding sentence upon conversion of their Notes, then no other adjustment pursuant to a tender offer or exchange offer this Section 7.06 shall be made by in connection with such shareholder rights plans.
(g) For purposes of this Section 7.06, the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not pay any dividend or make any distribution on shares of its Subsidiaries for all or any portion of the Ordinary Shares, to the extent that the Fair Market Value (as determined below) of the cash and any other consideration included Common Stock held in the payment per Ordinary Share, exceeds the Last reported Sale Price of Ordinary Shares on the Trading Day immediately after the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer (the “Expiration Date”), as it may be amended, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Expiration Date; CR’ = the Conversion Rate in effect on the Trading Day immediately following the Expiration Date; AC = the Fair Market Value (as determined by the Board of Directors treasury of the Company) on the Expiration Date, of the aggregate value of all cash and other consideration paid or payable for the Ordinary Shares validly tendered or exchanged and not withdrawn as of the Expiration Date; OS0 = the number of Ordinary Shares outstanding immediately before the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”) (prior to giving effect to such tender or exchange offer); OS’ = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect solely to such tende.
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