Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company as follows: (a) If the Company issues shares of Common Stock as a dividend or distribution 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 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; CR' = the new Conversion Rate in effect 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 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, and solely as a result of, such event. Such adjustment shall become effective immediately after (i) the Ex-Dividend Date for such dividend or distribution 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 9.02(a) is declared but not so paid or made, the new Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (b) If the Company distributes to all holders of its Common Stock any rights or warrants entitling them to purchase, for a period of not 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 immediately prior to the Ex-Dividend Date for such distribution; CR' = the new Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for such distribution; X = the total number of shares of Common Stock issuable pursuant to such rights or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights or warrants divided by 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. For purposes of this clause Section 9.02(b), in determining whether any rights or warrants entitle the Holders to subscribe for or purchase 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 shares 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. If any right or warrant described in this clause Section 9.02(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 9.02(b) shall become effective immediately after the Ex-Dividend Date for the applicable distribution. (c) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets or property of the Company to all holders of the Common Stock, excluding: (i) dividends or distributions as to which an adjustment applies under clause (a) or (b) above; (ii) dividends or distributions paid exclusively in cash; and (iii) Spin-Offs to which the provisions set forth below in this clause (c) shall apply; then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution; CR' = the new Conversion Rate in effect immediately after the 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) of the 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. Such adjustment shall become effective immediately after the Ex-Dividend Date for the applicable distribution. With respect to an adjustment pursuant to this clause (c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit (a “Spin-Off”), the Conversion Rate in effect immediately before 5:00 p.m., New York City time, on the tenth Trading Day immediately following, and including, the effective date of the Spin-Off will be increased based on the following formula: 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 new Conversion Rate in effect immediately after the tenth Trading Day immediately following, and including, the effective date of the Spin-Off; 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 over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Common Stock over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off. Such adjustment shall occur immediately after the tenth Trading Day immediately following, and including, the effective 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 “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the relevant Conversion Date. If any such dividend or distribution described in this clause (c) is declared but not paid or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (d) If any cash dividend or distribution is made to all holders of Common Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-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 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 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 Trading Day next succeeding the last 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 (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); 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 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 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 calculation 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
Samples: First Supplemental Indenture (Flotek Industries Inc/Cn/)
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 shall (i) pay a dividend, or make a distribution, on its outstanding Common Stock exclusively in shares of Common Stock; (ii) subdivide its outstanding Common Stock as into a dividend greater number of shares; (iii) combine its outstanding Common Stock into a smaller number of shares; or distribution on shares of the (iv) reclassify its Common Stock, or effects a share split or share combination, 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 Ex-Dividend Date for opening of business on the day immediately following (A) the applicable record date, in the case of any such dividend or distributionother distribution or (B) the applicable effective date, or the effective date of such share split or share combination, as in the case may be; CR' = of any such subdivision, combination or reclassification, by a fraction, of which:
(1) the new Conversion Rate in effect immediately after numerator shall be 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 = sum of:
(a) the number of shares of Common Stock outstanding immediately prior at the close of business on (I) the record date fixed for the determination of stockholders entitled to the Ex-Dividend Date for receive such dividend or distribution, other distribution or (II) on the day immediately preceding the effective date of such share split subdivision, combination or share combinationreclassification, as applicable,
(b) plus (i) the case may betotal 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 OS' = 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 afterpreceding the effective date of such subdivision, and solely as a result ofcombination or reclassification, in the case of any such eventsubdivision, combination or reclassification. Such An adjustment made pursuant to this Section 7.06(a) shall become effective immediately after (i) the Ex-Dividend Date for open of business on the day immediately following the applicable record date, in the case of any such dividend or distribution distribution, or (ii) immediately after the applicable effective date on which of any such split subdivision, combination or combination becomes effective, as applicablereclassification of Common Stock. If any dividend or distribution of the type described in clause (i) of the first sentence of this clause Section 9.02(a7.06(a) is declared but not so paid or made, the new Conversion Rate shall again be 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 distributes shall issue rights or warrants to all holders of its the Common Stock any rights or warrants entitling them to purchase, (for a period of not more than 45 expiring within 60 days after the Ex-Dividend Date date of issuance of such rights or warrants) to subscribe for the distribution, shares of or purchase Common Stock at a price per share less than the average Market Price per share 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 record date fixed for determination of shareholders entitled to receive such distributionrights 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 Ex-Dividend Date for open of business on the day immediately following such distribution; CR' = record date by a fraction of which (i) the new Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution; OS0 = numerator shall be the number of shares of Common Stock outstanding immediately prior to at the Ex-Dividend Date for close of business on such distribution; X = record date plus the total number of additional shares of Common Stock issuable pursuant to such rights offered for subscription or warrants; purchase, and Y = (ii) the denominator shall be the number of shares of Common Stock equal to outstanding at the close of business on such record date plus the number of shares which the aggregate offering price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices total number of shares so offered would purchase at the Market Price per share of Common Stock over on the 10 consecutive Trading Day period ending on earlier of such record date or the Trading Day immediately preceding the Ex-Dividend Date ex date for such distributionissuance of rights or warrants. For purposes Such adjustment shall be made successively whenever any such rights or warrants are issued and shall become effective immediately after the opening of this clause Section 9.02(b)business on the day immediately following the record date for the determination of shareholders entitled to receive such rights or warrants. 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 which 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 which would then be in effect if such record date for the determination of shareholders 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 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 shares 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. If any right or warrant described in this clause Section 9.02(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 9.02(b) shall become effective immediately after the Ex-Dividend Date for the applicable distribution.
(c) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets or property of the Company to all holders of the Common Stock, excluding:
(i) dividends or distributions as to which an adjustment applies under clause (a) or (b) above;
(ii) dividends or distributions paid exclusively in cash; and
(iii) Spin-Offs to which the provisions set forth below in this clause (c) shall apply; then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution; CR' = the new Conversion Rate in effect immediately after the 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) of the 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. Such adjustment shall become effective immediately after the Ex-Dividend Date for the applicable distribution. With respect to an adjustment pursuant to this clause (c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit (a “Spin-Off”), the Conversion Rate in effect immediately before 5:00 p.m., New York City time, on the tenth Trading Day immediately following, and including, the effective date of the Spin-Off will be increased based on the following formula: 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 new Conversion Rate in effect immediately after the tenth Trading Day immediately following, and including, the effective date of the Spin-Off; 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 over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Common Stock over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off. Such adjustment shall occur immediately after the tenth Trading Day immediately following, and including, the effective 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 “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the relevant Conversion Date. If any such dividend or distribution described in this clause (c) is declared but not paid or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If any cash dividend or distribution is made to all holders of Common Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-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 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 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 Trading Day next succeeding the last 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 (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); 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 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 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 calculation 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
Adjustments to Conversion Rate. The Conversion Rate shall be adjusted by the Company as follows:
(a) If the Company issues shares of Common Stock as a dividend or distribution 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 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; CR' ’ = the new Conversion Rate in effect 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 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, and solely as a result of, such event. Such adjustment shall become effective immediately after (i) the Ex-Dividend Date for such dividend or distribution 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 9.02(a) is declared but not so paid or made, the new Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company distributes to all holders of its Common Stock any rights or warrants entitling them to purchase, for a period of not 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 immediately prior to the Ex-Dividend Date for such distribution; CR' ’ = the new Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Date for such distribution; X = the total number of shares of Common Stock issuable pursuant to such rights or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights or warrants divided by 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. For purposes of this clause Section 9.02(b), in determining whether any rights or warrants entitle the Holders to subscribe for or purchase 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 shares 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. If any right or warrant described in this clause Section 9.02(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 9.02(b) shall become effective immediately after the Ex-Dividend Date for the applicable distribution.
(c) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets or property of the Company to all holders of the Common Stock, excluding:
(i) dividends or distributions as to which an adjustment applies under clause (a) or (b) above;
(ii) dividends or distributions paid exclusively in cash; and
(iii) Spin-Offs to which the provisions set forth below in this clause (c) shall apply; then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution; CR' ’ = the new Conversion Rate in effect immediately after the 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) of the 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. Such adjustment shall become effective immediately after the Ex-Dividend Date for the applicable distribution. With respect to an adjustment pursuant to this clause (c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit (a “Spin-Off”), the Conversion Rate in effect immediately before 5:00 p.m., New York City time, on the tenth Trading Day immediately following, and including, the effective date of the Spin-Off will be increased based on the following formula: 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 new Conversion Rate in effect immediately after the tenth Trading Day immediately following, and including, the effective date of the Spin-Off; 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 over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Common Stock over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off. Such adjustment shall occur immediately after the tenth Trading Day immediately following, and including, the effective 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 “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the relevant Conversion Date. If any such dividend or distribution described in this clause (c) is declared but not paid or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If any cash dividend or distribution is made to all holders of Common Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-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 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 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 Trading Day next succeeding the last 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 (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); 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 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 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 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 calculation 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
Samples: First Supplemental Indenture (Flotek Industries Inc/Cn/)
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 shares of Common Stock Ordinary Shares as a dividend or distribution on shares of the Common StockOrdinary 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 immediately prior to the Ex-Dividend close of business on the Record Date for the 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 the case may beapplicable; CR' CR1 = the new Conversion Rate in effect immediately after the Ex-Dividend close of business on such Record Date or immediately after the open of business on such effective date, as applicable; OS0 = the number of Ordinary Shares 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 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 Record Date for the ADSs for such dividend or distribution, or immediately after the open of business on the effective date of for 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, and solely as a result of, such event. Such adjustment shall become effective immediately after (i) the Ex-Dividend Date for such dividend or distribution 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 9.02(a7.3(a) is declared but not so paid or made, the new Conversion Rate shall again be adjusted immediately readjusted, effective as of the date the Board of Directors determines not to 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 distributes issues to all or substantially all holders of its Common Stock the Ordinary Shares (directly or in the form of ADSs) any rights rights, options or warrants entitling them to purchasethem, for a period of not more than 45 calendar days after the Ex-Dividend Date announcement date of such issuance, to subscribe for or purchase Ordinary Shares (directly or in the distribution, shares form of Common Stock ADSs) at a price per share Ordinary Share that is less than the average of the Last Reported Sale Prices of the Common Stock 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 on, and including, the Trading Day immediately preceding the declaration date for of announcement of such distributionissuance, the Conversion Rate will shall be adjusted increased based on the following formula: where, : CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend close of business on the Record Date for the ADSs for such distributionissuance; CR' CR1 = the new Conversion Rate in effect immediately after the Ex-Dividend Date for close of business on such distributionRecord Date; OS0 = the number of shares of Common Stock Ordinary Shares outstanding immediately prior to the Ex-Dividend Date for such distribution; X = the total number of shares of Common Stock issuable pursuant to such rights or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights or warrants divided by 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. For purposes of this clause Section 9.02(b), in determining whether any rights or warrants entitle the Holders to subscribe for or purchase 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 shares 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. If any right or warrant described in this clause Section 9.02(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 9.02(b) shall become effective immediately after the Ex-Dividend Date for the applicable distribution.
(c) If the Company distributes shares of Capital Stock, evidences of its indebtedness or other assets or property of the Company to all holders of the Common Stock, excluding:
(i) dividends or distributions as to which an adjustment applies under clause (a) or (b) above;
(ii) dividends or distributions paid exclusively in cash; and
(iii) Spin-Offs to which the provisions set forth below in this clause (c) shall apply; then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution; CR' = the new Conversion Rate in effect immediately after the 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) of the 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. Such adjustment shall become effective immediately after the Ex-Dividend Date for the applicable distribution. With respect to an adjustment pursuant to this clause (c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit (a “Spin-Off”), the Conversion Rate in effect immediately before 5:00 p.m., New York City time, on the tenth Trading Day immediately following, and including, the effective date of the Spin-Off will be increased based on the following formula: 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 new Conversion Rate in effect immediately after the tenth Trading Day immediately following, and including, the effective date of the Spin-Off; 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 over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Common Stock over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off. Such adjustment shall occur immediately after the tenth Trading Day immediately following, and including, the effective 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 “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the relevant Conversion Date. If any such dividend or distribution described in this clause (c) is declared but not paid or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If any cash dividend or distribution is made to all holders of Common Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-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 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 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 Trading Day next succeeding the last 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 (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); 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 Record 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 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 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 calculation 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
Samples: Convertible Note Purchase Agreement (Alibaba Group Holding LTD)
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 shall, at any time or from time to time while any of the Securities are outstanding, issue shares of Common Stock as a dividend or distribution on shares of the Common Stock, or if the Company effects a share split or share combinationcombination 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 immediately prior to the Ex-Dividend Close of Business on the Record Date for such dividend or distribution, or or, if no Record Date, immediately prior to the effective date of such share split or share combination, as the case may beapplicable; CR' ’ = the new Conversion Rate in effect immediately after the Ex-Dividend Close of Business on the Record Date for such dividend or distribution, or or, if no Record Date, immediately prior to the effective date of such share split or share combination, as the case may beapplicable; OS0 = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend Close of Business on the Record Date for such dividend or distribution, or or, if no Record Date, immediately prior to the effective date of such share split or share combination, as the case may beapplicable; and OS' ’ = the number of shares of Common Stock outstanding immediately afterafter such dividend or distribution, and solely or, if no Record Date, immediately after the Close of Business on the effective date of such share split or share combination, as a result of, such eventapplicable. Such adjustment shall become effective immediately after (i) the Ex-Dividend Close of Business on the Record Date fixed for such dividend or distribution or (ii) distribution, or, if no Record Date, immediately prior to the opening of business on the effective date on which for such share split or combination becomes effective, as applicableshare combination. If any dividend or distribution of the type described in this clause Section 9.02(a10.02(1) is declared but not so paid or made, or the new outstanding shares of Common Stock are not split or combined, as the case may be, the Conversion Rate shall again be adjusted immediately readjusted, effective as of the date the Board of Directors determines not to 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 distributes shall, at any time or from time to time while any of the Securities are outstanding, distribute to all or substantially all holders of its outstanding shares of Common Stock any options, rights or warrants entitling them to purchase, for a period of not more than 45 calendar days after from the Ex-Dividend Record Date of such distribution to subscribe for the distribution, or purchase shares of Common Stock at a price per share less than the average of the Last Reported Sale Prices Closing Price of the Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the declaration date for Record Date of such distribution, the Conversion Rate will shall be adjusted based on the following formula: where, where CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Close of Business on the Record Date for such distribution; CR' ’ = the new Conversion Rate in effect immediately after the Ex-Dividend Close of Business on the Record Date for such distribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Ex-Dividend 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 of the Last Reported Sale Prices Closing Price of the 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 Ex-Dividend Date Close of Business on the record date for such distribution. For purposes of this clause Section 9.02(b), in determining whether any rights or warrants entitle To the Holders to subscribe for or purchase extent that shares of Common Stock at less than are not delivered pursuant to any such options, rights or warrants that are non-transferable upon the average expiration or termination of such options, 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 distribution of such options, rights or warrants been made on the basis of the applicable Last Reported Sale Prices, and in delivery of only the number of shares of Common Stock actually delivered. In determining the aggregate exercise or conversion price payable for to exercise such shares of Common Stockoptions, 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 in good faith by the Board of Directors. If any right or warrant described in this clause Section 9.02(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 9.02(b) shall become effective immediately after the Ex-Dividend Date for the applicable distribution.
(c3) If the Company distributes Company, at any time or from time to time while any of the Securities are outstanding, shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock shares of any class of Capital StockStock of the Company (other than Common Stock as covered by Section 10.02(1)), evidences of its indebtedness indebtedness, assets, property or rights or warrants to acquire Capital Stock or other assets or property of the Company to all holders of the Common Stocksecurities, excluding:
but excluding (i) dividends or distributions as to which an adjustment applies under clause (aSection 10.02(1), Section 10.02(2) or (bSection 10.02(4) above;
hereof shall apply and (ii) dividends or distributions paid exclusively in cash; and
(iii) Spin-Offs to which the provisions provision set forth below in this clause (cSection 10.02(3) shall apply; then apply (any of such shares of Capital Stock, indebtedness, assets, property or rights or warrants to acquire Common Stock or other securities, hereinafter in this Section 10.02(3) called the “Distributed Property”), then, in each such case the Conversion Rate will shall be adjusted based on the following formula: where, where CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Close of Business on the Record Date for such distribution; CR' ’ = the new Conversion Rate in effect immediately after the Ex-Dividend Close of Business on the Record Date for such distribution; SP0 = the average of the Last Reported Sale Prices Closing Price of the 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) of the shares portion of Capital Stock, evidences of indebtedness, assets or property distributed Distributed Property with respect to each outstanding share of Common Stock on the Ex-Dividend Record Date for such distribution. Such adjustment shall become effective immediately after the Ex-Dividend Close of Business on the Record Date for such distribution; provided that if “FMV” as set forth above is equal to or greater than SP0 as set forth above, then in lieu of the applicable distributionforegoing adjustment, the 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 Distributed Property such holder would have received had such holder owned a number of shares of Common Stock equal to the product of (a) the Conversion Rate on the Record Date fixed for determination for shareholders entitled to receive such distribution 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 clause (cSection 10.02(3) where there has been a payment of a dividend or other distribution on the Common Stock consisting of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company (a “Spin-Off”), the Conversion Rate in effect immediately before 5:00 p.m., New York City time, the Close of Business on the tenth 10th Trading Day immediately following, and including, the effective date of the Spin-Off will shall be increased based on the following formula: where, where CR0 = the Conversion Rate in effect immediately prior to the tenth Close of Business on the 10th Trading Day immediately following, and including, following the effective date of the Spin-Off; CR' ’ = the new Conversion Rate in effect immediately after the tenth Close of Business on the 10th Trading Day immediately following, and including, following the effective date of the Spin-Off; FMV0 FMV = the average of the Last Reported Sale Closing Prices of the 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 immediately following, and including, the effective date of the Spin-Off; and MP0 = the average Closing Price of the Last Reported Sale Prices of Common Stock over the first 10 consecutive Trading Day period calculated immediately following, and including, the effective date of the Spin-Off. Such adjustment shall occur immediately after on the tenth 10th Trading Day immediately followingfrom, and including, the effective date of the Spin-Off; provided . In the event that in respect of any conversion during a Conversion Date occurs within the ten 10 Trading Days following from, and including, the effective date of any the Spin-Off, references within such Conversion Date shall be delayed until the portion conclusion of such 10 Trading Day period without further action by the Company. For purposes of this clause 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 (c) related to “Spin-Offs” to 10 Trading Days or both), shall be deemed replaced 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 lesser number dividend or distribution shall then be made) immediately followed by (ii) a dividend or distribution of Trading Days as have elapsed between 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 Spin-Off share split or share combination” and “the relevant Conversion Date. If 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 described 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 this clause 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 the opening of business on the 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 (ca) Conversion Rate on the Record Date for such distribution and (b) the principal of such Security, without being required to convert the Securities. If such dividend or distribution is declared but not so paid or made, the new Conversion Rate shall again be readjusted adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
. For the avoidance of doubt, for purposes of this subsection (d) If 4), in the event of any cash dividend or distribution is made to all holders reclassification of the Common Stock, as a result of which the Securities become convertible into more than one class of Common Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-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 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 if an adjustment to the Conversion Rate made is required pursuant to this clause subsection (d) shall become effective immediately after the Ex-Dividend Date for the applicable dividend or distribution. If any dividend or distribution described 4), references in this clause (d) is declared but not so paid Section 10.02 to one share of Common Stock or made, the new Conversion Rate Closing Price of one share of Common Stock shall be readjusted deemed to refer to a unit or to the Conversion Rate that would price of a unit consisting of the number of shares of each class of Common Stock into which the Securities are then be convertible equal to the numbers of shares of such class issued in effect if respect of one share of Common Stock in such dividend or distribution had not been declaredreclassification. The above provisions of this paragraph shall similarly apply to successive reclassifications.
(e5) If the Company or any of its Subsidiaries makes a payment of cash or other consideration in respect of a tender offer or exchange offer for all or any portion of the Common Stock, to the extent that the where such cash and the value of any such other consideration included in the payment per share of Common Stock validly tendered or exchanged exceeds the Last Reported Sale Closing Price of the Common Stock on the Trading Day next succeeding the last date (the “Expiration Date”) on which tenders or exchanges may be made pursuant to such tender or exchange offeroffer (as it may be amended), the Conversion Rate will shall 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 (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); 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 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 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 calculation 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
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 shall (i) pay a dividend or make a distribution on the Common 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 as a dividend or distribution on any shares of the Common Company's Capital 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 immediately prior to the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; CR' = , for the new Conversion Rate in effect immediately after 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, or the effective date of such share split or share combination, as the case may be; OS0 = conversion shall be entitled to receive the number of shares of Common Stock outstanding 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 the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; and OS' = the number of shares of Common Stock outstanding immediately after, and solely as a result of, such event. Such An adjustment made pursuant to this Section 9.6(a) shall become effective immediately after (i) the Ex-Dividend Date for such applicable record date in the case of a dividend or distribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or (ii) reclassification of the date on which such split or combination becomes effective, as applicableCommon Stock. If any dividend or distribution of the type described in this clause Section 9.02(a(i) above is declared but not so paid or made, the new Conversion Rate shall again be 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 distributes shall issue rights or warrants to all holders of its the Common Stock any rights or warrants entitling them to purchase, (for a period of not more than 45 expiring within 60 days after the Ex-Dividend Date date of issuance of such rights or warrants) to subscribe for the distribution, shares of or purchase Common Stock at a price per share less than the average Market Price per share 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 record date fixed for determination of shareholders entitled to receive such distributionrights or warrants, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to after such record date shall be adjusted so that the Ex-Dividend Date for such distribution; CR' = same shall equal the new Conversion Rate determined by multiplying the Conversion Rate in effect immediately after such record date by a fraction of which (i) the Ex-Dividend Date for such distribution; OS0 = numerator shall be the number of shares of Common Stock outstanding immediately prior to on such record date plus the Ex-Dividend Date for such distribution; X = the total number of additional shares of Common Stock issuable pursuant to such rights offered for subscription or warrants; purchase, and Y = (ii) the denominator shall be the number of shares of Common Stock equal to outstanding on such record date plus the number of shares which the aggregate offering price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices total number of shares so offered would purchase at the Market Price per share of Common Stock over on the 10 consecutive Trading Day period ending on earlier of such record date or the Trading Day immediately preceding the Ex-Dividend Date ex distribution date for such distributionissuance of rights or warrants. For purposes Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of this clause Section 9.02(b)business on the day following the record date for the determination of shareholders entitled to receive such rights or warrants. 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 which 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 which would then be in effect if such record date for the determination of shareholders 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 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 shares 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. If any right or warrant described in this clause Section 9.02(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 9.02(b) shall become effective immediately after the Ex-Dividend Date for the applicable distribution.
(ci) If In case the Company distributes shares of Capital Stockshall, evidences of its indebtedness whether by dividend or other assets in a merger, amalgamation or property of the Company consolidation or otherwise, distribute to all holders of the Common Stock, excluding:
(i) dividends or distributions as to which an adjustment applies under clause (a) or (b) above;
(ii) dividends or distributions paid exclusively in cash; and
(iii) Spin-Offs to which the provisions set forth below in this clause (c) shall apply; then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution; CR' = the new Conversion Rate in effect immediately after the 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) of the shares of Capital Stock, evidences any evidence of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the Ex-Dividend Date for the applicable distribution. With respect to an adjustment pursuant to this clause (c) where there has been a payment of a dividend or other distribution on the Common Stock 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, Equity Interests in the case of or relating to a Subsidiary or other business unit (a “Spin-Off”)off, and (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, 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 9.6(c) has been made, exceeds 15% of the Distribution Adjustment Market Price on the Trading Day immediately preceding the declaration of such distribution, then the Conversion Rate in effect immediately before 5:00 p.m., New York City time, on shall be adjusted so that the tenth Trading Day immediately following, and including, same shall equal the effective date of the Spin-Off will be increased based on the following formula: where, CR0 = Conversion Rate determined by dividing the Conversion Rate in effect immediately prior to the tenth Trading Day immediately following, and including, close of business on the effective record date fixed for determination of the Spin-Off; CR' = the new Conversion Rate in effect immediately after the tenth Trading Day immediately following, and including, the effective date of the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to 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 Common Stock, and (B) the denominator shall be (1) the Distribution Adjustment Market Price per share of the Common Stock 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 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 over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Common Stock over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-OffStock. Such adjustment shall occur become effective immediately after the tenth 10th consecutive Trading Day immediately following, commencing on and includingincluding the first Trading Day after the "ex distribution date" with respect to the distribution.
(ii) In the event of a Spin-off, the effective 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 “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the relevant Conversion Date. If any such dividend or distribution described in this clause (c) is declared but not paid or made, the new Conversion Rate shall be readjusted to be adjusted so that the same shall equal the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If any cash dividend or distribution is made to all holders of Common Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = determined by dividing the Conversion Rate in effect immediately prior to the Ex-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 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 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 Trading Day next succeeding the last 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 record date fixed for the determination 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 holders of Common Stock outstanding immediately prior entitled to receive such distribution by a fraction of which (A) the expiration numerator shall be the Spin-off Market Price per share of such tender 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 exchange offer; OS' = the number of shares similar Equity Interests so distributed applicable to one share of Common Stock outstanding immediately after the expiration of on such tender or exchange offer (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); 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 expiresrecord date. 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 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 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 calculation 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.9.6(c)
Appears in 1 contract
Samples: 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 shall (i) pay a dividend, or make a distribution on its Common Stock, payable exclusively in shares of Common Stock as 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 distribution on 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 Common Company's Capital 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 immediately prior to the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; CR' = , for the new Conversion Rate in effect immediately after 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, or the effective date of such share split or share combination, as the case may be; OS0 = conversion shall be entitled to receive the number of shares of Common Stock outstanding 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 the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; and OS' = the number of shares of Common Stock outstanding immediately after, and solely as a result of, such event. Such An adjustment made pursuant to this Section 9.8(a) shall become effective immediately after (i) the Ex-Dividend Date for such applicable record date in the case of a dividend or distribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or (ii) reclassification of the date on which such split or combination becomes effective, as applicableCommon Stock. If any dividend or distribution of the type described in this clause Section 9.02(a(i) above is declared but not so paid or made, the new Conversion Rate shall again be adjusted 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 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 distributes 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 its the Common Stock any rights or warrants entitling them to purchase, subscribe for a period of not more than 45 days after the Ex-Dividend Date for the distribution, shares of or purchase Common Stock at a price per share less (or having a conversion price per share less) than the average Current Market Price per share 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 distributionStock, 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 Ex-Dividend Date close of business on the record date fixed for determination of stockholders entitled to receive such distribution; CR' = rights or warrants (prior to any adjustment in accordance with this Section 9.8(b)) by a fraction of which (i) the new Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution; OS0 = numerator shall be the number of shares of Common Stock outstanding immediately prior to on such record date plus the Ex-Dividend Date for such distribution; X = the total number of additional shares of Common Stock issuable pursuant to such rights offered for subscription or warrants; purchase, and Y = (ii) the denominator shall be the number of shares of Common Stock equal to outstanding on such record date plus the number of shares which the aggregate offering price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices total number of shares so offered would purchase at the Current Market Price per share of Common Stock over on the 10 consecutive Trading Day period ending on earlier of such record date and the Trading Day immediately preceding the Ex-Dividend Date ex date for such distributionissuance of rights or warrants. For purposes Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of this clause Section 9.02(b)business on the day following the record date for the determination of stockholders entitled to receive such rights or warrants. To the extent that shares of Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall immediately be readjusted to the Conversion Rate which 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 immediately 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 rights or warrants had not been fixed. In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase 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 shares 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. If any right or warrant described in this clause Section 9.02(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 9.02(b) shall become effective immediately after the Ex-Dividend Date for the applicable distribution.
(c) If In case the Company distributes shares of Capital Stockshall, evidences of its indebtedness by dividend or other assets in a merger, amalgamation or property of the Company consolidation or otherwise, distribute to all or substantially all holders of the Common Stock, excluding:
(i) dividends or distributions as to which an adjustment applies under clause (a) or (b) above;
(ii) dividends or distributions paid exclusively in cash; and
(iii) Spin-Offs to which the provisions set forth below in this clause (c) shall apply; then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution; CR' = the new Conversion Rate in effect immediately after the 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) of the shares of Capital Stock, any evidences of indebtednessIndebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the Ex-Dividend Date for the applicable distribution. With respect to an adjustment pursuant to this clause (c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, other securities, cash or similar equity interestassets (excluding (i) any dividend, distribution or issuance covered by those referred to in Section 9.8(a) or 9.8(b) hereof, (ii) any dividend or distribution paid exclusively in cash referred to in Section 9.8(d) hereof or (iii) any dividend or distribution that constitutes a Spin-Off which is covered by Section 9.8(e) hereof), or rights or warrants to subscribe for or purchase any of its securities (excluding those rights or relating warrants referred to in Section 9.8(b) and also excluding the distribution of rights to all holders of Common Stock pursuant to a Subsidiary stockholders rights plan or other business unit the detachment of such rights under the terms of such stockholder rights plan) (a “Spin-Off”any of the foregoing hereinafter in this Section 9.8(c) called the "Distributed Assets"), then in each such case the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately before 5:00 p.m., New York City time, prior to the close of business on the tenth record date fixed for determination of stockholders 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 the Common Stock less (2) the Fair Market Value on such record date (as determined in good faith by the Board of 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 portion of the Distributed Assets so distributed applicable to one share of Common Stock. Such adjustment shall become effective immediately after the 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 to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock or (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, then, in lieu of the adjustment provided in this Section 9.8(c), adequate provision shall be made so that each Holder shall have the right to receive upon conversion, in addition to the shares of Common Stock, the kind and amount of assets, debt securities, or rights or warrants comprising the Distributed Assets the Holder would have received had such Holder converted such Notes immediately prior to the record date for the determination of stockholders 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.
(d) In case the Company shall make any distributions, by dividend or otherwise, consisting exclusively of cash to all or substantially all holders of outstanding shares of Common Stock, then, and in each such case, 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 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 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 made so that each Holder of a Note shall have the right to receive upon conversion, 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 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 (i) the numerator shall be the Spin-Off Market Price per share of the Common Stock on such 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 this Section 9.8(e) will occur at the earlier of (1) the 10th Trading Day immediately followingfrom, and including, the effective date of the Spin-Off will be increased based on and (2) the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the tenth Trading Day immediately following, and including, the effective date of the Initial Public Offering of the securities being distributed in the Spin-Off, if that Initial Public Offering is effected simultaneously with the Spin-Off; CR' = the new Conversion Rate in effect immediately after the tenth Trading Day immediately followingprovided, and includinghowever, the effective date of that, if (i) the Spin-Off; FMV0 = the average Off Market Price per Equity Interest of the Last Reported Sale Prices of the Capital Stock or similar equity interest Subsidiary so distributed to holders of Common Stock applicable to one share of Common Stock over is equal to or greater than the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Common Stock over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off. Such adjustment shall occur immediately after the tenth Trading Day immediately following, and including, the effective 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 “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the relevant Conversion Date. If any such dividend or distribution described in this clause (c) is declared but not paid or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If any cash dividend or distribution is made to all holders of Common Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-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 Current Market Price of the Common Stock on or (ii) the Trading Day 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 foregoing adjustment, adequate provision shall be made so that each Holder of a Note shall have the right to receive upon conversion, such distribution such Holder would have received had such Holder converted each Note immediately preceding prior to the Ex-Dividend Date record date for the determination of stockholders entitled to receive the distribution.
(f) In case a tender or exchange offer made by the Company or any Subsidiary shall expire and such distribution; and C = tender or exchange offer (as amended upon the amount in cash expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (as determined in good faith by the Company's Board of Directors, whose determination shall be conclusive and described in a resolution of the Company distributes to holders Board of Common Stock. An adjustment to the Conversion Rate made pursuant to this clause (dDirectors) 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 as of the Common Stock on last time (the Trading Day next succeeding the last date on which "Expiration Time") tenders or exchanges may be made pursuant to such tender or exchange offer, offer (as it may be amended) exceeds the Conversion Rate will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at the close Last Reported Sale Price of business on the last Trading Day a share of the 10 consecutive Trading Day period commencing Common Stock on the Trading Day next succeeding the date such tender or exchange offer expires; CR' = Expiration Time, the new Conversion Rate in effect immediately following shall be adjusted so that the last Trading Day 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 10 consecutive Trading Day period commencing aggregate consideration payable to stockholders based on the Trading Day next succeeding acceptance (up to any maximum specified in the date such tender or exchange offer expires; AC = terms of 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 = ) 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 immediately prior to (less any Purchased Shares) at the expiration Expiration Time and the Last Reported Sale Price of such tender or exchange offer; OS' = 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 immediately after (including any tendered or exchanged shares) at the expiration of such tender or exchange offer (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); and SP' = the average of Expiration Time multiplied by the Last Reported Sale Prices Price of a share of Common Stock over the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date Expiration Time, such tender or exchange offer expires. The adjustment to the Conversion Rate under this clause (e) shall become effective immediately prior to the opening of business on the day 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 DateExpiration Time. If the Company or one of its Subsidiaries is obligated to purchase Common Stock shares pursuant to any such tender or exchange offer offer, but are the Company is permanently prevented by applicable law from effecting any such purchase purchases or all such purchases are rescinded, the new 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.
(fg) Notwithstanding Upon conversion of the foregoing provisions of this Section 9.02Notes, no adjustment will be made thereunderthe Holders shall receive, 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 they receive shares of Common Stock equal Stock, in addition to the applicable Conversion RateCommon Stock issuable upon such conversion, multiplied by the principal amount rights issued under any shareholder rights plan the Company implements (expressed 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 thousands) accordance with the rights plan. If, and only if, the Holders of Notes receive rights under such shareholder rights plans as described in the Securities held by such holderpreceding sentence upon conversion of their Notes, without having then no other adjustment pursuant 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 9.8 shall 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 9.03connection with such shareholder rights plans.
(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 9.029.8, 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 The Company pays shall not pay any dividend or makes make any distribution on, or issues any rights, options or warrants in respect of, on shares of Common Stock held in the treasury by of 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.
(li) If Net-Share Settlement applies and any provision of this Article 9 requires a calculation Notwithstanding the foregoing, in the event of an average of the Daily VWAP over a span of multiple daysadjustment pursuant to Sections 9.8(d) or (f), the Company will make appropriate "Maximum Conversion Rate" shall initially be 39.2157 and shall be appropriately adjusted from time to time pursuant to any adjustments to the Daily Settlement Amount in Section 9.8(a), (determined in good faith by the Board of Directorsb), (c) 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 calculation 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 effectiveand (e) hereof.
Appears in 1 contract
Samples: 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 shall (i) pay a dividend, or make a distribution, on the Common Stock exclusively in shares of Common Stock as a dividend or distribution on shares 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, 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 immediately prior to the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; CR' = , for the new Conversion Rate in effect immediately after 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, or the effective date of such share split or share combination, as the case may be; OS0 = conversion shall be entitled to receive the number of shares of Common Stock outstanding 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 the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; and OS' = the number of shares of Common Stock outstanding immediately after, and solely as a result of, such event. Such An adjustment made pursuant to this Section 7.06(a) shall become effective immediately after (i) the Ex-Dividend Date for such applicable record date in the case of a dividend or distribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or (ii) reclassification of the date on which such split or combination becomes effective, as applicableCommon Stock. If any dividend or distribution of the type described in this clause Section 9.02(a(i) above is declared but not so paid or made, the new Conversion Rate shall again be 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 distributes shall issue rights or warrants to all holders of its the Common Stock any rights or warrants entitling them to purchase, (for a period of not more than 45 expiring within 60 days after the Ex-Dividend Date date of issuance of such rights or warrants) to subscribe for the distribution, shares of or purchase Common Stock at a price per share less than the average Market Price per share 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 record date fixed for determination of shareholders entitled to receive such distributionrights or warrants, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to after such record date shall be adjusted so that the Ex-Dividend Date for such distribution; CR' = same shall equal the new Conversion Rate determined by multiplying the Conversion Rate in effect immediately after such record date by a fraction of which (i) the Ex-Dividend Date for such distribution; OS0 = numerator shall be the number of shares of Common Stock outstanding immediately prior to on such record date plus the Ex-Dividend Date for such distribution; X = the total number of additional shares of Common Stock issuable pursuant to such rights offered for subscription or warrants; purchase, and Y = (ii) the denominator shall be the number of shares of Common Stock equal to outstanding on such record date plus the number of shares which the aggregate offering price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices total number of shares so offered would purchase at the Market Price per share of Common Stock over on the 10 consecutive Trading Day period ending on earlier of such record date or the Trading Day immediately preceding the Ex-Dividend Date ex date for such distributionissuance of rights or warrants. For purposes Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of this clause Section 9.02(b)business on the day following the record date for the determination of shareholders entitled to receive such rights or warrants. 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 which 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 which would then be in effect if such record date for the determination of shareholders 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 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 shares 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. If any right or warrant described in this clause Section 9.02(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 9.02(b) shall become effective immediately after the Ex-Dividend Date for the applicable distribution.
(c) If In case the Company distributes shares of Capital Stockshall, evidences of its indebtedness by dividend or other assets or property of the Company otherwise, distribute to all holders of the Common StockStock any assets, excluding:
debt securities or rights or warrants to purchase any of its securities (excluding (i) dividends any dividend, distribution or distributions as issuance covered by those referred to which an adjustment applies under clause (ain Section 7.06(a) or (b) above;
7.06(b), and (ii) dividends any dividend or distributions distribution paid exclusively in cash; and
) (iii) Spin-Offs to which any of the provisions set forth below foregoing hereinafter in this clause (cSection 7.06(c) shall apply; then 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 7.06(c) has been made, exceeds 10% of the Market Price on the Trading Day immediately preceding the declaration of such distribution, then, 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 Ex-Dividend Date for such distribution; CR' = close of business on the new Conversion Rate in effect immediately after record date mentioned below by a fraction of which (A) the Ex-Dividend Date for such distribution; SP0 = numerator shall be the average of the Last Reported Sale Prices Market Price per share of the Common Stock over on the 10 consecutive Trading Day period ending on earlier of 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, whose determination shall be conclusive, and described in a certificate filed with the Trustee and the Paying Agent) of the shares of Capital Stock, evidences of indebtedness, assets Distributed Assets or property Securities so distributed with respect applicable to each outstanding one share of Common Stock on the Ex-Dividend Date for such distributionStock. Such adjustment shall become effective immediately after the Ex-Dividend Date record date for the applicable determination of shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this clause ; provided, however, that, if (ci) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit (a “Spin-Off”), the Conversion Rate in effect immediately before 5:00 p.m., New York City time, on the tenth Trading Day immediately following, and including, the effective date Fair Market Value of the Spin-Off will be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the tenth Trading Day immediately following, and including, the effective date portion of the Spin-Off; CR' = the new Conversion Rate in effect immediately after the tenth Trading Day immediately following, and including, the effective date of the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock Distributed Assets or similar equity interest Securities so distributed to holders of Common Stock applicable to one share of Common Stock over is equal to or greater than the first 10 consecutive Trading Day period immediately followingMarket 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, and includingthen, 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 shares of Common Stock, the effective 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 Notes immediately prior to the record date for the determination of shareholders entitled to receive such distribution. In the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Common Stock over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off. Such adjustment shall occur immediately after the tenth Trading Day immediately following, and including, the effective date of the Spin-Off; provided event 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 “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the relevant Conversion Date. If any such dividend or distribution described in this clause (c) is declared but not so paid or made, the new Conversion Rate shall again be readjusted adjusted to be the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared.
(d) If In case the Company shall make any cash distributions, by dividend or distribution is 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 StockStock during the twelve months immediately preceding the date of such dividend or distribution and (ii) any cash and the 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 Common Stock concluded during the twelve months immediately preceding the date of such dividend or distribution, exceeds 10% of the product of the Market Price on the Record Date with respect to such distribution times the number of shares of Common Stock outstanding on such date, then, and in 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 immediately prior to the Ex-Dividend Date close of business on the record date fixed for the determination of holders of Common Stock entitled to receive such distribution; CR' = distribution by a fraction of which (A) the new Conversion Rate in effect immediately after numerator shall be the Ex-Dividend Date for such distribution; SP0 = the Last Reported Sale 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 distribution; dividend or distribution and C = (B) the amount in cash denominator shall be (1) the Market Price per share of Common Stock on the earlier of such record date or the Company distributes to holders of Common Stock. An adjustment to Trading Day immediately preceding the Conversion Rate made pursuant to this clause (d) shall become effective immediately after the Ex-Dividend Date ex 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.
less (e2) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for Common Stock, an amount equal to the extent that quotient of (x) the cash and value of any other consideration included combined amount distributed or payable in the payment per share of Common Stock exceeds the Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to transactions described in clauses (i), (ii) and (iii) above during 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 twelve-month 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 Directorsy) paid or payable for shares purchased in such tender or exchange offer; OS0 = 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 7.06(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 multiplying the Conversion Rate in effect immediately prior to the expiration close of such tender or exchange offer; OS' = business on the number record date fixed for the determination of shares holders of Common Stock outstanding immediately after entitled to receive such distribution by a fraction of which (i) the expiration of such tender or exchange offer numerator shall be (after giving effect to x) the purchase or exchange of shares pursuant to such tender or exchange offer); and SP' = the average Spin-off Market Price per share of the Last Reported Sale Prices of Common Stock over on such record date plus (y) the 10 consecutive Trading Day period commencing Spin-off Market Price per Equity Interest of the Subsidiary or other business unit of the Company on such record date and (ii) the Trading Day next succeeding denominator shall be the date Spin-off Market Price per share of the Common Stock on such tender or exchange offer expires. The record date, such 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 after the effective date of such lesser number distribution of Trading Days as have elapsed between Equity Interests in a Subsidiary or other business unit of 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 madeCompany.
(f) Notwithstanding Upon conversion of the foregoing provisions 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 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 9.02, no adjustment will 7.06 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 on the same terms as holders of Common Stock as if connection with 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)shareholder rights plans.
(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 9.027.06, 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. If the The Company pays shall not pay any dividend or makes make any distribution on, or issues any rights, options or warrants in respect of, on shares of Common Stock held in the treasury by of 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.
(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 calculation 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
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 shall (i) pay a dividend, or make a distribution on its Common Stock, payable exclusively in shares of Common Stock as 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 distribution on 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 Common Company’s Capital 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 immediately prior to the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; CR' = , for the new Conversion Rate in effect immediately after 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, or the effective date of such share split or share combination, as the case may be; OS0 = conversion shall be entitled to receive the number of shares of Common Stock outstanding 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 the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; and OS' = the number of shares of Common Stock outstanding immediately after, and solely as a result of, such event. Such An adjustment made pursuant to this Section 9.8(a) shall become effective immediately after (i) the Ex-Dividend Date for such applicable record date in the case of a dividend or distribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or (ii) reclassification of the date on which such split or combination becomes effective, as applicableCommon Stock. If any dividend or distribution of the type described in this clause Section 9.02(a(i) above is declared but not so paid or made, the new Conversion Rate shall again be adjusted 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 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 distributes 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 its the Common Stock any rights or warrants entitling them to purchase, subscribe for a period of not more than 45 days after the Ex-Dividend Date for the distribution, shares of or purchase Common Stock at a price per share less (or having a conversion price per share less) than the average Current Market Price per share 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 distributionStock, 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 Ex-Dividend Date close of business on the record date fixed for determination of stockholders entitled to receive such distribution; CR' = rights or warrants (prior to any adjustment in accordance with this Section 9.8(b)) by a fraction of which (i) the new Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution; OS0 = numerator shall be the number of shares of Common Stock outstanding immediately prior to on such record date plus the Ex-Dividend Date for such distribution; X = the total number of additional shares of Common Stock issuable pursuant to such rights offered for subscription or warrants; purchase, and Y = (ii) the denominator shall be the number of shares of Common Stock equal to outstanding on such record date plus the number of shares which the aggregate offering price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices total number of shares so offered would purchase at the Current Market Price per share of Common Stock over on the 10 consecutive Trading Day period ending on earlier of such record date and the Trading Day immediately preceding the Ex-Dividend Date ex date for such distributionissuance of rights or warrants. For purposes Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of this clause Section 9.02(b)business on the day following the record date for the determination of stockholders entitled to receive such rights or warrants. To the extent that shares of Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall immediately be readjusted to the Conversion Rate which 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 immediately 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 rights or warrants had not been fixed. In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase 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 shares 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. If any right or warrant described in this clause Section 9.02(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 9.02(b) shall become effective immediately after the Ex-Dividend Date for the applicable distribution.
(c) If In case the Company distributes shares of Capital Stockshall, evidences of its indebtedness by dividend or other assets in a merger, amalgamation or property of the Company consolidation or otherwise, distribute to all or substantially all holders of the Common Stock, excluding:
(i) dividends or distributions as to which an adjustment applies under clause (a) or (b) above;
(ii) dividends or distributions paid exclusively in cash; and
(iii) Spin-Offs to which the provisions set forth below in this clause (c) shall apply; then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution; CR' = the new Conversion Rate in effect immediately after the 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) of the shares of Capital Stock, any evidences of indebtednessIndebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the Ex-Dividend Date for the applicable distribution. With respect to an adjustment pursuant to this clause (c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, other securities, cash or similar equity interestassets (excluding (i) any dividend, distribution or issuance covered by those referred to in Section 9.8(a) or 9.8(b) hereof, (ii) any dividend or distribution paid exclusively in cash referred to in Section 9.8(d) hereof or (iii) any dividend or distribution that constitutes a Spin-Off which is covered by Section 9.8(e) hereof), or rights or warrants to subscribe for or purchase any of or relating its securities (including the distribution of rights to all holders of Common Stock pursuant to a Subsidiary stockholders rights plan or other business unit 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)) (a any of the foregoing hereinafter in this Section 9.8(c) called the “Spin-OffDistributed Assets”), then in each such case the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately before 5:00 p.m., New York City time, prior to the close of business on the tenth record date fixed for determination of stockholders 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 the Common Stock less (2) the Fair Market Value on such record date (as determined in good faith by the Board of 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 portion of the Distributed Assets so distributed applicable to one share of Common Stock. Such adjustment shall become effective immediately after the 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 to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock or (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, then, in lieu of the adjustment provided in this Section 9.8(c), adequate provision shall be made so that each Holder shall have the right to receive upon conversion, in addition to the shares of Common Stock, the kind and amount of assets, debt securities, or rights or warrants comprising the Distributed Assets the Holder would have received had such Holder converted such Notes immediately prior to the record date for the determination of stockholders 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.
(d) In case the Company shall make any distributions, by dividend or otherwise, consisting exclusively of cash to all or substantially all holders of outstanding shares of Common Stock, then, and in each such case, 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 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 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 made so that each Holder of a Note shall have the right to receive upon conversion, 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 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 (i) the numerator shall be the Spin-Off Market Price per share of the Common Stock on such 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 this Section 9.8(e) will occur at the earlier of (1) the 10th Trading Day immediately followingfrom, and including, the effective date of the Spin-Off will be increased based on and (2) the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the tenth Trading Day immediately following, and including, the effective date of the Initial Public Offering of the securities being distributed in the Spin-Off, if that Initial Public Offering is effected simultaneously with the Spin-Off; CR' = the new Conversion Rate in effect immediately after the tenth Trading Day immediately followingprovided, and includinghowever, the effective date of that, if (i) the Spin-Off; FMV0 = the average Off Market Price per Equity Interest of the Last Reported Sale Prices of the Capital Stock or similar equity interest Subsidiary so distributed to holders of Common Stock applicable to one share of Common Stock over is equal to or greater than the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Common Stock over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off. Such adjustment shall occur immediately after the tenth Trading Day immediately following, and including, the effective 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 “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the relevant Conversion Date. If any such dividend or distribution described in this clause (c) is declared but not paid or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If any cash dividend or distribution is made to all holders of Common Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-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 Current Market Price of the Common Stock on or (ii) the Trading Day 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 foregoing adjustment, adequate provision shall be made so that each Holder of a Note shall have the right to receive upon conversion, such distribution such Holder would have received had such Holder converted each Note immediately preceding prior to the Ex-Dividend Date record date for the determination of stockholders entitled to receive the distribution.
(f) In case a tender or exchange offer made by the Company or any Subsidiary shall expire and such distribution; and C = tender or exchange offer (as amended upon the amount in cash expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (as determined in good faith by the Company’s Board of Directors, whose determination shall be conclusive and described in a resolution of the Company distributes to holders Board of Common Stock. An adjustment to the Conversion Rate made pursuant to this clause (dDirectors) 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 as of the Common Stock on last time (the Trading Day next succeeding the last date on which “Expiration Time”) tenders or exchanges may be made pursuant to such tender or exchange offer, offer (as it may be amended) exceeds the Conversion Rate will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at the close Closing Price of business on the last Trading Day a share of the 10 consecutive Trading Day period commencing Common Stock on the Trading Day next succeeding the date such tender or exchange offer expires; CR' = Expiration Time, the new Conversion Rate in effect immediately following shall be adjusted so that the last Trading Day 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 10 consecutive Trading Day period commencing aggregate consideration payable to stockholders based on the Trading Day next succeeding acceptance (up to any maximum specified in the date such tender or exchange offer expires; AC = terms of 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 = ) 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 immediately prior to (less any Purchased Shares) at the expiration Expiration Time and the Closing Price of such tender or exchange offer; OS' = 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 immediately after (including any tendered or exchanged shares) at the expiration Expiration Time multiplied by the Closing Price of such tender or exchange offer (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); and SP' = the average of the Last Reported Sale Prices a share of Common Stock over the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date Expiration Time, such tender or exchange offer expires. The adjustment to the Conversion Rate under this clause (e) shall become effective immediately prior to the opening of business on the day 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 DateExpiration Time. If the Company or one of its Subsidiaries is obligated to purchase Common Stock shares pursuant to any such tender or exchange offer offer, but are the Company is permanently prevented by applicable law from effecting any such purchase purchases or all such purchases are rescinded, the new 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.
(fg) Notwithstanding Upon conversion of the foregoing provisions of this Section 9.02Notes, no adjustment will be made thereunderthe Holders shall receive, 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 they receive shares of Common Stock equal Stock, in addition to the applicable Conversion RateCommon Stock issuable upon such conversion, multiplied by the principal amount rights issued under any shareholder rights plan the Company implements (expressed 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 thousands) accordance with the rights plan. If, and only if, the Holders of Notes receive rights under such shareholder rights plans as described in the Securities held by such holderpreceding sentence upon conversion of their Notes, without having then no other adjustment pursuant 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 9.8 shall 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 9.03connection with such shareholder rights plans.
(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 9.029.8, 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 The Company pays shall not pay any dividend or makes make any distribution on, or issues any rights, options or warrants in respect of, on shares of Common Stock held in the treasury by of the Company.
(i) Notwithstanding any of the foregoing, in no event shall the Company shall not issue, transfer or convey such Conversion Rate as adjusted pursuant to this Section 9.8 exceed 41.2881 shares of Common Stock in a manner that would have the effect issuable upon conversion per $1,000 principal amount of circumventing the provisions Notes, other than on account 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 proportional 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 in the Conversion Rate where the Ex-Dividend Date manner set forth in paragraphs (a) through (c) of the event occurs, at any time during the period from which such calculation 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 effectivethis Section 9.8.
Appears in 1 contract
Samples: Indenture (Aar 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 Issuer shall: (i) pay a dividend, or make a distribution, exclusively in shares of Common Stock as a dividend or distribution its capital stock, on shares of the Common 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, 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 immediately prior to the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; CR' = , for the new Conversion Rate in effect immediately after 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, or the effective date of such share split or share combination, as the case may be; OS0 = conversion shall be entitled to receive the number of shares of Common Stock outstanding 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 the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; and OS' = the number of shares of Common Stock outstanding immediately after, and solely as a result of, such event. Such An adjustment made pursuant to this Section 6.06(a) shall become effective immediately after (i) the Ex-Dividend Date for such applicable record date in the case of a dividend or distribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or (ii) reclassification of the date on which such split or combination becomes effective, as applicableIssuer's Common Stock. If any dividend or distribution of the type described in this clause Section 9.02(a(i) above is declared but not so paid or made, the new Conversion Rate shall again be 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 distributes Issuer shall issue rights or warrants to all holders of its the Common Stock any rights or warrants entitling them to purchase, (for a period of not more than 45 expiring within 60 days after the Ex-Dividend Date date of issuance of such rights or warrants) to subscribe for the distribution, shares of or purchase Common Stock at a price per share less than the average Market Price per share 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 record date fixed for determination of shareholders entitled to receive such distributionrights or warrants, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to after such record date shall be adjusted so that the Ex-Dividend Date for such distribution; CR' = same shall equal the new Conversion Rate determined by multiplying the Conversion Rate in effect immediately after such record date by a fraction of which (i) the Ex-Dividend Date for such distribution; OS0 = numerator shall be the number of shares of Common Stock outstanding immediately prior to on such record date plus the Ex-Dividend Date for such distribution; X = the total number of additional shares of Common Stock issuable pursuant to such rights offered for subscription or warrants; purchase, and Y = (ii) the denominator shall be the number of shares of Common Stock equal to outstanding on such record date plus the number of shares which the aggregate offering price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices total number of shares so offered would purchase at the Market Price per share of Common Stock over on the 10 consecutive Trading Day period ending on earlier of such record date or the Trading Day immediately preceding the Ex-Dividend Date ex date for such distributionissuance of rights or warrants. For purposes Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of this clause Section 9.02(b)business on the day following the record date for the determination of shareholders entitled to receive such rights or warrants. 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 which 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 which would then be in effect if such record date for the determination of shareholders 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 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 shares 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. If any right or warrant described in this clause Section 9.02(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 9.02(b) shall become effective immediately after the Ex-Dividend Date for the applicable distribution.
(c) If In case the Company distributes shares of Capital StockIssuer shall, evidences of its indebtedness by dividend or other assets or property of the Company otherwise, distribute to all holders of the Common StockStock any assets, excluding:
debt securities or rights or warrants to purchase any of its securities (excluding (i) dividends any dividend, distribution or distributions as issuance covered by those referred to which an adjustment applies under clause (ain Section 6.06(a) or (bSection 6.06(b) above;
hereof and (ii) dividends any dividend or distributions distribution paid exclusively in cash; and
) (iii) Spin-Offs to which any of the provisions set forth below foregoing hereinafter in this clause (cSection 6.06(c) shall apply; 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 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 Ex-Dividend Date for such distribution; CR' = close of business on the new Conversion Rate in effect immediately after record date mentioned below by a fraction of which (A) the Ex-Dividend Date for such distribution; SP0 = numerator shall be the average of the Last Reported Sale Prices Market Price per share of the Common Stock over on the 10 consecutive Trading Day period ending on earlier of 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, whose determination shall be conclusive, and described in a certificate filed with the Trustee and the Paying Agent) of the shares of Capital Stock, evidences of indebtedness, assets Distributed Assets or property Securities so distributed with respect applicable to each outstanding one share of Common Stock on the Ex-Dividend Date for such distributionStock. Such adjustment shall become effective immediately after the Ex-Dividend Date record date for the applicable determination of shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this clause ; provided, however, that, if (ci) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit (a “Spin-Off”), the Conversion Rate in effect immediately before 5:00 p.m., New York City time, on the tenth Trading Day immediately following, and including, the effective date Fair Market Value of the Spin-Off will be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the tenth Trading Day immediately following, and including, the effective date portion of the Spin-Off; CR' = the new Conversion Rate in effect immediately after the tenth Trading Day immediately following, and including, the effective date of the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock Distributed Assets or similar equity interest Securities so distributed to holders of Common Stock applicable to one share of Common Stock over is equal to or greater than the first 10 consecutive Trading Day period immediately followingMarket 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 includingshares of Common Stock, the effective 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 Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Common Stock over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off. Such adjustment shall occur immediately after the tenth Trading Day immediately following, and including, the effective date of the Spin-Off; provided event 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 “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the relevant Conversion Date. If any such dividend or distribution described in this clause (c) is declared but not so paid or made, the new Conversion Rate shall again be readjusted adjusted to be the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared.
(d) If any In case the Issuer shall declare a cash dividend or cash distribution is made to all or substantially all of the holders of Common Stock, the Conversion Rate will shall be adjusted based on increased so that the following formula: where, CR0 = Conversion Rate shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the Ex-Dividend Date record date for such distribution; CR' = dividend or distribution by a fraction,
(i) the new Conversion Rate in effect immediately after numerator of which shall be the Ex-Dividend Date for such distribution; SP0 = the Last Reported Sale Price average of the Common Stock Price for the five consecutive Trading Days ending on the Trading Day immediately preceding the Exrecord date for such dividend or distribution (the "Pre-Dividend Date for Sale Price"),
(ii) the denominator of which shall be the Pre-Dividend Sale Price, minus the full amount of such distribution; and C = the amount in cash per dividend or cash distribution applicable to one share of Common Stock of (the Company distributes to holders of Common Stock. An "Dividend Adjustment Amount"), and such adjustment to the Conversion Rate made pursuant to this clause (d) shall become effective immediately after the Ex-Dividend Date record date for the applicable such dividend or distribution; provided that if the denominator of the foregoing fraction is less than $1.00 (including a negative amount), 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 Common Stock issuable upon such conversion, the amount of cash such Holder would have received had such Holder converted its 2023 Note solely into Common Stock at the then applicable Conversion Rate immediately prior to the record date for such cash dividend or cash distribution. If any such cash dividend or cash distribution described in this clause (d) is declared but not so paid or made, the new Conversion Rate shall again be readjusted adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(e) 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 makes 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 payment in respect of a tender or exchange offer for Common Stock, Fundamental Change (other than relating to the extent that composition of the cash Issuer's Board of Directors as described in clause (iv) of the definition of Fundamental Change in Section 1.02(b)) and 10% or more of the fair market value of any other the consideration included in the payment per share of Common Stock exceeds the Last Reported Sale Price of for the Common Stock on the Trading Day next succeeding the last 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 Issuer's 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 , whose determination shall be conclusive evidence of such tender 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 offer; OS' = or the number of shares of Common Stock outstanding immediately after the expiration of such tender or exchange offer (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); 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 Nasdaq National Market, then the Conversion Rate under this clause (e) shall become effective immediately following of the tenth Trading Day next succeeding the date 2023 Notes being converted by such tender or exchange offer expires; provided that, in respect of any conversion during the ten Trading Days following the date Holder at that any tender or exchange offer expires, references within this clause (e) to 10 Trading Days time shall be deemed replaced with adjusted so that 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 Holder will be made thereunder, nor shall an adjustment be made entitled 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 receive cash and shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount sum of (expressed in thousandsA) 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 Value and (except on account of share combinations).
(gB) 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 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 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 calculation 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
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 shall (i) pay a dividend, or make a distribution on its Common Stock, exclusively in shares of its Common Stock or other Capital Stock of the Company; (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 as a dividend or distribution on any shares of the Common Company's Capital 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 immediately prior to the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; CR' = , for the new Conversion Rate in effect immediately after 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, or the effective date of such share split or share combination, as the case may be; OS0 = conversion shall be entitled to receive the number of shares of Common Stock outstanding 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 the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; and OS' = the number of shares of Common Stock outstanding immediately after, and solely as a result of, such event. Such An adjustment made pursuant to this Section 9.6(a) shall become effective immediately after (i) the Ex-Dividend Date for such applicable record date in the case of a dividend or distribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or (ii) reclassification of the date on which such split or combination becomes effective, as applicableCommon Stock. If any dividend or distribution of the type described in this clause Section 9.02(a(i) above is declared but not so paid or made, the new Conversion Rate shall again be 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 distributes 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 its the Common Stock any rights or warrants entitling them to purchase, subscribe for a period of not more than 45 days after the Ex-Dividend Date for the distribution, shares of or purchase Common Stock at a price per share less than the average Market Price per share 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 record date fixed for determination of shareholders entitled to receive such distributionrights or warrants, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to after such record date shall be adjusted so that the Ex-Dividend Date for such distribution; CR' = same shall equal the new Conversion Rate determined by multiplying the Conversion Rate in effect immediately after such record date by a fraction of which (i) the Ex-Dividend Date for such distribution; OS0 = numerator shall be the number of shares of Common Stock outstanding immediately prior to on such record date plus the Ex-Dividend Date for such distribution; X = the total number of additional shares of Common Stock issuable pursuant to such rights offered for subscription or warrants; purchase, and Y = (ii) the denominator shall be the number of shares of Common Stock equal to outstanding on such record date plus the number of shares which the aggregate offering price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices total number of shares so offered would purchase at the Market Price per share of Common Stock over on the 10 consecutive Trading Day period ending on earlier of such record date or the Trading Day immediately preceding the Ex-Dividend Date ex date for such distributionissuance of rights or warrants. For purposes Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of this clause Section 9.02(b)business on the day following the record date for the determination of shareholders entitled to receive such rights or warrants. 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 which 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 which would then be in effect if such record date for the determination of shareholders 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 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 shares 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. If any right or warrant described in this clause Section 9.02(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 9.02(b) shall become effective immediately after the Ex-Dividend Date for the applicable distribution.
(c) If In case the Company distributes shares of Capital Stockshall, evidences of its indebtedness by dividend or other assets in a merger, amalgamation or property of the Company consolidation or otherwise, distribute to all holders of the Common Stock, excluding:
(i) dividends or distributions as to which an adjustment applies under clause (a) or (b) above;
(ii) dividends or distributions paid exclusively in cash; and
(iii) Spin-Offs to which the provisions set forth below in this clause (c) shall apply; then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution; CR' = the new Conversion Rate in effect immediately after the 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) of the shares of Capital Stock, any evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the Ex-Dividend Date for the applicable distribution. With respect to an adjustment pursuant to this clause (c) where there has been a payment of a dividend or other distribution on the Common Stock of 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 interestEquity 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 foregoing hereinafter in this Section 9.6(c) called the "Distributed Assets or relating Notes") 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 9.6(c) has been made, exceeds 10% of the Distribution Adjustment 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 dividing 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 distribution below by a fraction of which (A) the numerator shall be 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, and (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, whose determination shall be conclusive, and described in a certificate filed with the Trustee and the Paying Agent) of the Distributed Assets or Notes 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 Notes so distributed applicable to one share of Common Stock is equal to or greater than the Distribution Adjustment Market Price of the Common Stock on the record date for the determination of shareholders entitled to receive such distribution or (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, 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 shares of Common Stock, the kind and amount of assets, debt securities, or rights or warrants comprising the Distributed Assets or Notes the Holder would have received had such Holder converted such 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 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.
(d) 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 outstanding shares of Common Stock, then, and in each such case, 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 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 date for 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 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 (a “Spin-Off”)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 before 5:00 p.m., New York City time, prior to the close of business on the tenth record 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-Off Market Price per share of the Common Stock on such record date and (ii) the denominator shall be (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 on such record date. The adjustment to the Conversion Rate set forth in this Section 9.6(e) will occur at the earlier of (1) the 10th Trading Day immediately followingfrom, and including, the effective date of the Spin-Off will be increased based on and (2) the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the tenth Trading Day immediately following, and including, the effective date of the Initial Public Offering of the securities being distributed in the Spin-Off; CR' = the new Conversion Rate in effect immediately after the tenth Trading Day immediately following, and including, the effective date of if that Initial Public Offering is effected simultaneously with the Spin-Off; 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 over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Common Stock over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off. Such adjustment shall occur immediately after the tenth Trading Day immediately following, and including, the effective 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 “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the relevant Conversion Date. If any such dividend or distribution described in this clause (c) is declared but not paid or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If any cash dividend or distribution is made to all holders of Common Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-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 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 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 Trading Day next succeeding the last 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 (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); 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 Upon conversion of the foregoing provisions of this Section 9.02Notes, no adjustment will be made thereunderthe Holders shall receive, 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 they receive shares of Common Stock equal Stock, in addition to the applicable Conversion RateCommon Stock issuable upon such conversion, multiplied by the principal amount rights issued under any shareholder rights plan the Company implements (expressed 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 thousands) accordance with the rights plan. If, and only if, the Holders of Notes receive rights under such shareholder rights plans as described in the Securities held by such holderpreceding sentence upon conversion of their Notes, without having then no other adjustment pursuant 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 9.6 shall be made (except on account of share combinations)in connection with such shareholder rights plans.
(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 9.029.6, 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 The Company pays shall not pay any dividend or makes make any distribution on, or issues any rights, options or warrants in respect of, on shares of Common Stock held in the treasury by of 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.
(lh) If Net-Share Settlement applies and any provision of this Article 9 requires a calculation Notwithstanding the foregoing, in the event of an average of the Daily VWAP over a span of multiple daysadjustment pursuant to Sections 9.6(c), (d) or (e), the Company will make appropriate "Maximum Conversion Rate" shall initially be 28.6533 and shall be appropriately adjusted from time to time pursuant to any adjustments to the Daily Settlement Amount (determined in good faith by the Board of DirectorsSection 9.6(a) 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 calculation 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 effectiveand Section 9.6(b) hereof.
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 Issuer shall: (i) pay a dividend, or make a distribution, exclusively in shares of Common Stock as a dividend or distribution its capital stock, on shares of the Common 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, 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 immediately prior to the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; CR' = , for the new Conversion Rate in effect immediately adjustment pursuant to this Section 6.06(a) as described below, shall be adjusted so that the Holder of any 2023 Notes thereafter surrendered for conversion shall be entitled to receive the cash and number of shares of Common Stock of the Issuer 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 2023 Notes been converted immediately prior to such record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; OS0 = the number of shares of Common Stock outstanding immediately prior . An adjustment made pursuant 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, and solely as a result of, such event. Such adjustment this Section 6.06(a) shall become effective immediately after (i) the Ex-Dividend Date for such applicable record date in the case of a dividend or distribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or (ii) reclassification of the date on which such split or combination becomes effective, as applicableIssuer's Common Stock. If any dividend or distribution of the type described in this clause Section 9.02(a(i) above is declared but not so paid or made, the new Conversion Rate shall again be 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 distributes Issuer shall issue rights or warrants to all holders of its the Common Stock any rights or warrants entitling them to purchase, (for a period of not more than 45 expiring within 60 days after the Ex-Dividend Date date of issuance of such rights or warrants) to subscribe for the distribution, shares of or purchase Common Stock at a price per share less than the average Market Price per share 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 record date fixed for determination of shareholders entitled to receive such distributionrights or warrants, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to after such record date shall be adjusted so that the Ex-Dividend Date for such distribution; CR' = same shall equal the new Conversion Rate determined by multiplying the Conversion Rate in effect immediately after such record date by a fraction of which (i) the Ex-Dividend Date for such distribution; OS0 = numerator shall be the number of shares of Common Stock outstanding immediately prior to on such record date plus the Ex-Dividend Date for such distribution; X = the total number of additional shares of Common Stock issuable pursuant to such rights offered for subscription or warrants; purchase, and Y = (ii) the denominator shall be the number of shares of Common Stock equal to outstanding on such record date plus the number of shares which the aggregate offering price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices total number of shares so offered would purchase at the Market Price per share of Common Stock over on the 10 consecutive Trading Day period ending on earlier of such record date or the Trading Day immediately preceding the Ex-Dividend Date ex date for such distributionissuance of rights or warrants. For purposes Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of this clause Section 9.02(b)business on the day following the record date for the determination of shareholders entitled to receive such rights or warrants. 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 which 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 which would then be in effect if such record date for the determination of shareholders 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 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 shares 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. If any right or warrant described in this clause Section 9.02(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 9.02(b) shall become effective immediately after the Ex-Dividend Date for the applicable distribution.
(c) If In case the Company distributes shares of Capital StockIssuer shall, evidences of its indebtedness by dividend or other assets or property of the Company otherwise, distribute to all holders of the Common StockStock any assets, excluding:
debt securities or rights or warrants to purchase any of its securities (excluding (i) dividends any dividend, distribution or distributions as issuance covered by those referred to which an adjustment applies under clause (ain Section 6.06(a) or (bSection 6.06(b) above;
hereof and (ii) dividends any dividend or distributions distribution paid exclusively in cash; and
) (iii) Spin-Offs to which any of the provisions set forth below foregoing hereinafter in this clause (cSection 6.06(c) shall apply; 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 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 Ex-Dividend Date for such distribution; CR' = close of business on the new Conversion Rate in effect immediately after record date mentioned below by a fraction of which (A) the Ex-Dividend Date for such distribution; SP0 = numerator shall be the average of the Last Reported Sale Prices Market Price per share of the Common Stock over on the 10 consecutive Trading Day period ending on earlier of 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, whose determination shall be conclusive, and described in a certificate filed with the Trustee and the Paying Agent) of the shares of Capital Stock, evidences of indebtedness, assets Distributed Assets or property Securities so distributed with respect applicable to each outstanding one share of Common Stock on the Ex-Dividend Date for such distributionStock. Such adjustment shall become effective immediately after the Ex-Dividend Date record date for the applicable determination of shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this clause ; provided, however, that, if (ci) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit (a “Spin-Off”), the Conversion Rate in effect immediately before 5:00 p.m., New York City time, on the tenth Trading Day immediately following, and including, the effective date Fair Market Value of the Spin-Off will be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the tenth Trading Day immediately following, and including, the effective date portion of the Spin-Off; CR' = the new Conversion Rate in effect immediately after the tenth Trading Day immediately following, and including, the effective date of the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock Distributed Assets or similar equity interest Securities so distributed to holders of Common Stock applicable to one share of Common Stock over is equal to or greater than the first 10 consecutive Trading Day period immediately followingMarket 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 includingshares of Common Stock, the effective 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 Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Common Stock over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off. Such adjustment shall occur immediately after the tenth Trading Day immediately following, and including, the effective date of the Spin-Off; provided event 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 “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the relevant Conversion Date. If any such dividend or distribution described in this clause (c) is declared but not so paid or made, the new applicable Conversion Rate shall again be readjusted adjusted to be the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared.
(d) If any In case the Issuer shall declare a cash dividend or cash distribution is made to all or substantially all of the holders of Common Stock, the Conversion Rate will shall be adjusted based on increased so that the following formula: where, CR0 = applicable Conversion Rate shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the Ex-Dividend Date record date for such distribution; CR' = dividend or distribution by a fraction,
(i) the new Conversion Rate in effect immediately after numerator of which shall be the Ex-Dividend Date for such distribution; SP0 = average of the Last Reported Sale Price of the Common Stock for the five consecutive Trading Days ending on the Trading Day immediately preceding the Exrecord date for such dividend or distribution (the "Pre-Dividend Date for Sale Price"), and
(ii) the denominator of which shall be the Pre-Dividend Sale Price, minus the full amount of such distribution; and C = the amount in cash per dividend or cash distribution applicable to one share of Common Stock of (the Company distributes to holders of Common Stock. An "Dividend Adjustment Amount"), with such adjustment to the Conversion Rate made pursuant to this clause (d) shall become effective immediately after the Ex-Dividend Date record date for the applicable such dividend or distribution; provided that if the denominator of the foregoing fraction is less than $1.00 (including a negative amount), 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 Common Stock issuable upon such conversion, the amount of cash such Holder would have received had such Holder converted its 2023 Note solely into Common Stock at the then applicable Conversion Rate immediately prior to the record date for such cash dividend or cash distribution. If any such cash dividend or cash distribution described in this clause (d) is declared but not so paid or made, the new applicable Conversion Rate shall again be readjusted adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(e) If a Holder elects to convert 2023 Notes in connection with a corporate transaction that occurs on or prior to July 15, 2008, that constitutes a Fundamental Change (other than as described in clause (iv) of the Company definition of Fundamental Change) and 10% or any more of its Subsidiaries makes a payment in respect the Fair Market Value of a tender or exchange offer the consideration 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 Trading Day next succeeding the last 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 , whose determination shall be conclusive evidence of such tender 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 offer; OS' = or the number of shares of Common Stock outstanding immediately after the expiration of such tender or exchange offer (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); 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 Nasdaq National Market, then the Conversion Rate under this clause (e) shall become effective immediately following for the tenth Trading Day next succeeding the date 2023 Notes surrendered for conversion by 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 Holder shall be deemed replaced with adjusted so that 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 Holder will be made thereunder, nor shall an adjustment be made entitled 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 receive cash and shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount sum of (expressed in thousandsA) 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 Value and (B) the Conversion Rate will be made (except on account number 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 additional 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"Additional Shares") 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 determined 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 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 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 calculation 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.manner
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 shall (i) pay a dividend, or make a distribution on its Common Stock, payable exclusively in shares of Common Stock as 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 distribution on 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 Common Company’s Capital 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 immediately prior to the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; CR' = , for the new Conversion Rate in effect immediately after 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, or the effective date of such share split or share combination, as the case may be; OS0 = conversion shall be entitled to receive the number of shares of Common Stock outstanding 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 the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; and OS' = the number of shares of Common Stock outstanding immediately after, and solely as a result of, such event. Such An adjustment made pursuant to this Section 9.7(a) shall become effective immediately after (i) the Ex-Dividend Date for such applicable record date in the case of a dividend or distribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or (ii) reclassification of the date on which such split or combination becomes effective, as applicableCommon Stock. If any dividend or distribution of the type described in this clause Section 9.02(a(i) above is declared but not so paid or made, the new Conversion Rate shall again be adjusted 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 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 distributes 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 its the Common Stock any rights or warrants entitling them to purchase, purchase Common Stock for a period of not more than 45 60 days after from the Ex-Dividend Date for the distribution, shares date of Common Stock issuance of such rights or warrants at a price per share less (or having a conversion price per share less) than the average Current Market Price per share 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 distributionStock, 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 Ex-Dividend Date close of business on the record date fixed for determination of stockholders entitled to receive such distribution; CR' = rights or warrants (prior to any adjustment in accordance with this Section 9.7(b)) by a fraction of which (i) the new Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution; OS0 = numerator shall be the number of shares of Common Stock outstanding immediately prior to on such record date plus the Ex-Dividend Date for such distribution; X = the total number of additional shares of Common Stock issuable pursuant to such rights offered for subscription or warrants; purchase, and Y = (ii) the denominator shall be the number of shares of Common Stock equal to outstanding on such record date plus the number of shares which the aggregate offering price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices total number of shares so offered would purchase at the Current Market Price per share of Common Stock over on the 10 consecutive Trading Day period ending on earlier of such record date and the Trading Day immediately preceding the Ex-Dividend Date ex date for such distributionissuance of rights or warrants. For purposes Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of this clause Section 9.02(b)business on the day following the record date for the determination of stockholders entitled to receive such rights or warrants. To the extent that shares of Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall immediately be readjusted to the Conversion Rate which 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 immediately 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 rights or warrants had not been fixed. In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase 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 shares 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. If any right or warrant described in this clause Section 9.02(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 9.02(b) shall become effective immediately after the Ex-Dividend Date for the applicable distribution.
(c) If In case the Company distributes shares of Capital Stockshall, evidences of its indebtedness by dividend or other assets in a merger, amalgamation or property of the Company consolidation or otherwise, distribute to all or substantially all holders of the Common Stock, excluding:
(i) dividends or distributions as to which an adjustment applies under clause (a) or (b) above;
(ii) dividends or distributions paid exclusively in cash; and
(iii) Spin-Offs to which the provisions set forth below in this clause (c) shall apply; then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution; CR' = the new Conversion Rate in effect immediately after the 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) of the shares of Capital Stock, any evidences of indebtednessIndebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the Ex-Dividend Date for the applicable distribution. With respect to an adjustment pursuant to this clause (c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, other securities, cash or similar equity interestassets (excluding (i) any dividend, distribution or issuance covered by those referred to in Section 9.7(a) or 9.7(b) hereof, (ii) any dividend or distribution paid exclusively in cash referred to in Section 9.7(d), 9.7(f) or 9.7(g) hereof or (iii) any dividend or distribution that constitutes a Spin-Off which is covered by Section 9.7(e) hereof), or rights or warrants to purchase any of or relating its securities (including the distribution of rights to all holders of Common Stock pursuant to a Subsidiary stockholders rights plan or other business unit 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)) (a any of the foregoing hereinafter in this Section 9.7(c) called the “Spin-OffDistributed Assets”), then in each such case the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately before 5:00 p.m., New York City time, prior to the close of business on the tenth day prior to the ex-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 the Common Stock less (2) the Fair Market Value on such record date (as determined in good faith by the Board of 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 portion of the Distributed Assets so distributed applicable to one share of Common Stock. Such adjustment shall become effective immediately after the 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 to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock or (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, then, in lieu of the adjustment provided in this Section 9.7(c), adequate provision shall be made so that each Holder shall have the right to receive upon conversion, in addition to the shares of Common Stock, the kind and amount of assets, debt securities, or rights or warrants comprising the Distributed Assets the Holder would have received had such Holder converted such Notes immediately prior to the record date for the determination of stockholders 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.
(d) In case the Company shall make any distributions, by dividend or otherwise, consisting exclusively of cash to all or substantially all holders of outstanding shares of Common Stock, then, and in each such case, 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 day prior to the ex-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 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 made so that each Holder of a Note shall have the right to receive upon conversion, 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 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 (i) the numerator shall be the Spin-Off Market Price per share of the Common Stock on such 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 this Section 9.7(e) will occur at the earlier of (1) the 10th Trading Day immediately followingfrom, and including, the effective date of the Spin-Off will be increased based on and (2) the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the tenth Trading Day immediately following, and including, the effective date of the Initial Public Offering of the securities being distributed in the Spin-Off, if that Initial Public Offering is effected simultaneously with the Spin-Off; CR' = the new Conversion Rate in effect immediately after the tenth Trading Day immediately followingprovided, and includinghowever, the effective date of that, if (i) the Spin-Off; FMV0 = the average Off Market Price per Equity Interest of the Last Reported Sale Prices of the Capital Stock or similar equity interest Subsidiary so distributed to holders of Common Stock applicable to one share of Common Stock over is equal to or greater than the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Common Stock over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off. Such adjustment shall occur immediately after the tenth Trading Day immediately following, and including, the effective 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 “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the relevant Conversion Date. If any such dividend or distribution described in this clause (c) is declared but not paid or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If any cash dividend or distribution is made to all holders of Common Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-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 Current Market Price of the Common Stock on or (ii) the Trading Day 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 foregoing adjustment, adequate provision shall be made so that each Holder of a Note shall have the right to receive upon conversion, such distribution such Holder would have received had such Holder converted each Note immediately preceding prior to the Ex-Dividend Date record date for the determination of stockholders entitled to receive the distribution.
(f) In case a tender or exchange offer made by the Company or any Subsidiary shall expire and such distribution; and C = tender or exchange offer (as amended upon the amount in cash expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (as determined in good faith by the Company’s Board of Directors, whose determination shall be conclusive and described in a resolution of the Company distributes to holders Board of Common Stock. An adjustment to the Conversion Rate made pursuant to this clause (dDirectors) 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 as of the Common Stock on last time (the Trading Day next succeeding the last date on which “Expiration Time”) tenders or exchanges may be made pursuant to such tender or exchange offer, offer (as it may be amended) exceeds the Conversion Rate will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at the close Closing Sale Price of business on the last Trading Day a share of the 10 consecutive Trading Day period commencing Common Stock on the Trading Day next succeeding the date such tender or exchange offer expires; CR' = Expiration Time, the new Conversion Rate in effect immediately following shall be adjusted so that the last Trading Day 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 10 consecutive Trading Day period commencing aggregate consideration payable to stockholders based on the Trading Day next succeeding acceptance (up to any maximum specified in the date such tender or exchange offer expires; AC = terms of 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 = ) 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 immediately prior to (less any Purchased Shares) at the expiration Expiration Time and (b) the Closing Sale Price of such tender or exchange offer; OS' = 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 immediately after (including any Purchased Shares) at the expiration Expiration Time multiplied by the Closing Sale Price of such tender or exchange offer (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); and SP' = the average of the Last Reported Sale Prices a share of Common Stock over the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date Expiration Time, such tender or exchange offer expires. The adjustment to the Conversion Rate under this clause (e) shall become effective immediately prior to the opening of business on the day 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 DateExpiration Time. If the Company or one of its Subsidiaries is obligated to purchase Common Stock shares pursuant to any such tender or exchange offer offer, but are the Company is permanently prevented by applicable law from effecting any such purchase purchases or all such purchases are rescinded, the new 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.
(fg) Notwithstanding In the foregoing provisions 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 this Section 9.02, no adjustment will be made thereunder, nor shall an adjustment be made to the ability of a Holder to convert, Common Stock for any distribution described therein if the Holder will otherwise participate in the distribution five consecutive Trading Days ending on the same terms as holders last date of such repurchase (such excess amount, the “Repurchase Premium”), and such repurchase (together with any other repurchases 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 Subsidiary concluded within 12 months of its Subsidiaries;
(iiisuch repurchase, the consideration for which involved a Repurchase Premium) upon resulted in the issuance payment by the Company or any Subsidiary of any shares of Common Stock pursuant an aggregate consideration exceeding an amount equal to any option, warrant, right, or exercisable, exchangeable or convertible security not described in clause (ii) above and outstanding as 10% of the Exchanged Securities Issue Date;
(iv) for 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 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.fraction,
(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 numerator of which it has knowledge is still in effect. Promptly after delivery of such certificate, shall be 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 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 calculation 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.9.7
Appears in 1 contract
Samples: Indenture (Saks Inc)
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 shall (i) pay a dividend, or make a distribution on its Common Stock, payable exclusively in shares of Common Stock as 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 distribution on 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 Common Company’s Capital 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 immediately prior to the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; CR' = , for the new Conversion Rate in effect immediately after 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, or the effective date of such share split or share combination, as the case may be; OS0 = conversion shall be entitled to receive the number of shares of Common Stock outstanding 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 the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; and OS' = the number of shares of Common Stock outstanding immediately after, and solely as a result of, such event. Such An adjustment made pursuant to this Section 9.8(a) shall become effective immediately after (i) the Ex-Dividend Date for such applicable record date in the case of a dividend or distribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or (ii) reclassification of the date on which such split or combination becomes effective, as applicableCommon Stock. If any dividend or distribution of the type described in this clause Section 9.02(a(i) above is declared but not so paid or made, the new Conversion Rate shall again be adjusted 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 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 distributes 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 its the Common Stock any rights or warrants entitling them to purchase, subscribe for a period of not more than 45 days after the Ex-Dividend Date for the distribution, shares of or purchase Common Stock at a price per share less (or having a conversion price per share less) than the average Current Market Price per share 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 distributionStock, 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 Ex-Dividend Date close of business on the record date fixed for determination of stockholders entitled to receive such distribution; CR' = rights or warrants (prior to any adjustment in accordance with this Section 9.8(b)) by a fraction of which (i) the new Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution; OS0 = numerator shall be the number of shares of Common Stock outstanding immediately prior to on such record date plus the Ex-Dividend Date for such distribution; X = the total number of additional shares of Common Stock issuable pursuant to such rights offered for subscription or warrants; purchase, and Y = (ii) the denominator shall be the number of shares of Common Stock equal to outstanding on such record date plus the number of shares which the aggregate offering price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices total number of shares so offered would purchase at the Current Market Price per share of Common Stock over on the 10 consecutive Trading Day period ending on earlier of such record date and the Trading Day immediately preceding the Ex-Dividend Date ex date for such distributionissuance of rights or warrants. For purposes Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of this clause Section 9.02(b)business on the day following the record date for the determination of stockholders entitled to receive such rights or warrants. To the extent that shares of Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall immediately be readjusted to the Conversion Rate which 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 immediately 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 rights or warrants had not been fixed. In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase 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 shares 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. If any right or warrant described in this clause Section 9.02(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 9.02(b) shall become effective immediately after the Ex-Dividend Date for the applicable distribution.
(c) If In case the Company distributes shares of Capital Stockshall, evidences of its indebtedness by dividend or other assets in a merger, amalgamation or property of the Company consolidation or otherwise, distribute to all or substantially all holders of the Common Stock, excluding:
(i) dividends or distributions as to which an adjustment applies under clause (a) or (b) above;
(ii) dividends or distributions paid exclusively in cash; and
(iii) Spin-Offs to which the provisions set forth below in this clause (c) shall apply; then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution; CR' = the new Conversion Rate in effect immediately after the 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) of the shares of Capital Stock, any evidences of indebtednessIndebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the Ex-Dividend Date for the applicable distribution. With respect to an adjustment pursuant to this clause (c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, other securities, cash or similar equity interestassets (excluding (i) any dividend, distribution or issuance covered by those referred to in Section 9.8(a) or 9.8(b) hereof, (ii) any dividend or distribution paid exclusively in cash referred to in Section 9.8(d) hereof or (iii) any dividend or distribution that constitutes a Spin-Off which is covered by Section 9.8(e) hereof), or rights or warrants to subscribe for or purchase any of or relating its securities (including the distribution of rights to all holders of Common Stock pursuant to a Subsidiary stockholders rights plan or other business unit 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)) (a any of the foregoing hereinafter in this Section 9.8(c) called the “Spin-OffDistributed Assets”), then in each such case the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately before 5:00 p.m., New York City time, prior to the close of business on the tenth record date fixed for determination of stockholders 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 the Common Stock less (2) the Fair Market Value on such record date (as determined in good faith by the Board of 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 portion of the Distributed Assets so distributed applicable to one share of Common Stock. Such adjustment shall become effective immediately after the 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 to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock or (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, then, in lieu of the adjustment provided in this Section 9.8(c), adequate provision shall be made so that each Holder shall have the right to receive upon conversion, in addition to the shares of Common Stock, the kind and amount of assets, debt securities, or rights or warrants comprising the Distributed Assets the Holder would have received had such Holder converted such Notes immediately prior to the record date for the determination of stockholders 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.
(d) In case the Company shall make any distributions, by dividend or otherwise, consisting exclusively of cash to all or substantially all holders of outstanding shares of Common Stock, then, and in each such case, 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 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 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 made so that each Holder of a Note shall have the right to receive upon conversion, 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 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 (i) the numerator shall be the Spin-Off Market Price per share of the Common Stock on such 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 this Section 9.8(e) will occur at the earlier of (1) the 10th Trading Day immediately followingfrom, and including, the effective date of the Spin-Off will be increased based on and (2) the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the tenth Trading Day immediately following, and including, the effective date of the Initial Public Offering of the securities being distributed in the Spin-Off, if that Initial Public Offering is effected simultaneously with the Spin-Off; CR' = the new Conversion Rate in effect immediately after the tenth Trading Day immediately followingprovided, and includinghowever, the effective date of that, if (i) the Spin-Off; FMV0 = the average Off Market Price per Equity Interest of the Last Reported Sale Prices of the Capital Stock or similar equity interest Subsidiary so distributed to holders of Common Stock applicable to one share of Common Stock over is equal to or greater than the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Common Stock over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off. Such adjustment shall occur immediately after the tenth Trading Day immediately following, and including, the effective 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 “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the relevant Conversion Date. If any such dividend or distribution described in this clause (c) is declared but not paid or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If any cash dividend or distribution is made to all holders of Common Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-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 Current Market Price of the Common Stock on or (ii) the Trading Day 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 foregoing adjustment, adequate provision shall be made so that each Holder of a Note shall have the right to receive upon conversion, such distribution such Holder would have received had such Holder converted each Note immediately preceding prior to the Ex-Dividend Date record date for the determination of stockholders entitled to receive the distribution.
(f) In case a tender or exchange offer made by the Company or any Subsidiary shall expire and such distribution; and C = tender or exchange offer (as amended upon the amount in cash expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (as determined in good faith by the Company’s Board of Directors, whose determination shall be conclusive and described in a resolution of the Company distributes to holders Board of Common Stock. An adjustment to the Conversion Rate made pursuant to this clause (dDirectors) 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 as of the Common Stock on last time (the Trading Day next succeeding the last date on which “Expiration Time”) tenders or exchanges may be made pursuant to such tender or exchange offer, offer (as it may be amended) exceeds the Conversion Rate will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at the close Closing Price of business on the last Trading Day a share of the 10 consecutive Trading Day period commencing Common Stock on the Trading Day next succeeding the date such tender or exchange offer expires; CR' = Expiration Time, the new Conversion Rate in effect immediately following shall be adjusted so that the last Trading Day 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 10 consecutive Trading Day period commencing aggregate consideration payable to stockholders based on the Trading Day next succeeding acceptance (up to any maximum specified in the date such tender or exchange offer expires; AC = terms of 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 = ) 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 immediately prior to (less any Purchased Shares) at the expiration Expiration Time and the Closing Price of such tender or exchange offer; OS' = 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 immediately after (including any tendered or exchanged shares) at the expiration Expiration Time multiplied by the Closing Price of such tender or exchange offer (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); and SP' = the average of the Last Reported Sale Prices a share of Common Stock over the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date Expiration Time, such tender or exchange offer expires. The adjustment to the Conversion Rate under this clause (e) shall become effective immediately prior to the opening of business on the day 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 DateExpiration Time. If the Company or one of its Subsidiaries is obligated to purchase Common Stock shares pursuant to any such tender or exchange offer offer, but are the Company is permanently prevented by applicable law from effecting any such purchase purchases or all such purchases are rescinded, the new 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.
(fg) Notwithstanding Upon conversion of the foregoing provisions of this Section 9.02Notes, no adjustment will be made thereunderthe Holders shall receive, 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 they receive shares of Common Stock equal Stock, in addition to the applicable Conversion RateCommon Stock issuable upon such conversion, multiplied by the principal amount rights issued under any shareholder rights plan the Company implements (expressed 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 thousands) accordance with the rights plan. If, and only if, the Holders of Notes receive rights under such shareholder rights plans as described in the Securities held by such holderpreceding sentence upon conversion of their Notes, without having then no other adjustment pursuant 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 9.8 shall 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 9.03connection with such shareholder rights plans.
(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 9.029.8, 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 The Company pays shall not pay any dividend or makes make any distribution on, or issues any rights, options or warrants in respect of, on shares of Common Stock held in the treasury by of the Company.
(i) Notwithstanding any of the foregoing, in no event shall the Company shall not issue, transfer or convey such Conversion Rate as adjusted pursuant to this Section 9.8 exceed 41.2881 shares of Common Stock in a manner that would have the effect issuable upon conversion per $1,000 principal amount of circumventing the provisions Notes, other than on account 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 proportional 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 in the Conversion Rate where the Ex-Dividend Date manner set forth in paragraphs (a) through (c) of the event occurs, at any time during the period from which such calculation 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 effectivethis Section 9.8.
Appears in 1 contract
Samples: Indenture (Aar Corp)
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 shall (i) pay a dividend, or make a distribution on its Common Stock, payable exclusively in shares of Common Stock as 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 distribution on 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 Common Company’s Capital 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 immediately prior to the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; CR' = , for the new Conversion Rate in effect immediately after 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, or the effective date of such share split or share combination, as the case may be; OS0 = conversion shall be entitled to receive the number of shares of Common Stock outstanding 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 the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; and OS' = the number of shares of Common Stock outstanding immediately after, and solely as a result of, such event. Such An adjustment made pursuant to this Section 9.8(a) shall become effective immediately after (i) the Ex-Dividend Date for such applicable record date in the case of a dividend or distribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or (ii) reclassification of the date on which such split or combination becomes effective, as applicableCommon Stock. If any dividend or distribution of the type described in this clause Section 9.02(a(i) above is declared but not so paid or made, the new Conversion Rate shall again be adjusted 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 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 distributes 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 its the Common Stock any rights or warrants entitling them to purchase, subscribe for a period of not more than 45 days after the Ex-Dividend Date for the distribution, shares of or purchase Common Stock at a price per share less (or having a conversion price per share less) than the average Current Market Price per share 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 distributionStock, 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 Ex-Dividend Date close of business on the record date fixed for determination of stockholders entitled to receive such distribution; CR' = rights or warrants (prior to any adjustment in accordance with this Section 9.8(b)) by a fraction of which (i) the new Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution; OS0 = numerator shall be the number of shares of Common Stock outstanding immediately prior to on such record date plus the Ex-Dividend Date for such distribution; X = the total number of additional shares of Common Stock issuable pursuant to such rights offered for subscription or warrants; purchase, and Y = (ii) the denominator shall be the number of shares of Common Stock equal to outstanding on such record date plus the number of shares which the aggregate offering price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices total number of shares so offered would purchase at the Current Market Price per share of Common Stock over on the 10 consecutive Trading Day period ending on earlier of such record date and the Trading Day immediately preceding the Ex-Dividend Date ex date for such distributionissuance of rights or warrants. For purposes Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of this clause Section 9.02(b)business on the day following the record date for the determination of stockholders entitled to receive such rights or warrants. To the extent that shares of Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall immediately be readjusted to the Conversion Rate which 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 immediately 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 rights or warrants had not been fixed. In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase 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 shares 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. If any right or warrant described in this clause Section 9.02(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 9.02(b) shall become effective immediately after the Ex-Dividend Date for the applicable distribution.
(c) If In case the Company distributes shares of Capital Stockshall, evidences of its indebtedness by dividend or other assets in a merger, amalgamation or property of the Company consolidation or otherwise, distribute to all or substantially all holders of the Common Stock, excluding:
(i) dividends or distributions as to which an adjustment applies under clause (a) or (b) above;
(ii) dividends or distributions paid exclusively in cash; and
(iii) Spin-Offs to which the provisions set forth below in this clause (c) shall apply; then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution; CR' = the new Conversion Rate in effect immediately after the 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) of the shares of Capital Stock, any evidences of indebtednessIndebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the Ex-Dividend Date for the applicable distribution. With respect to an adjustment pursuant to this clause (c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, other securities, cash or similar equity interestassets (excluding (i) any dividend, distribution or issuance covered by those referred to in Section 9.8(a) or 9.8(b) hereof, (ii) any dividend or distribution paid exclusively in cash referred to in Section 9.8(d) hereof or (iii) any dividend or distribution that constitutes a Spin-Off which is covered by Section 9.8(e) hereof), or rights or warrants to subscribe for or purchase any of or relating its securities (including the distribution of rights to all holders of Common Stock pursuant to a Subsidiary stockholders rights plan or other business unit 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)) (a any of the foregoing hereinafter in this Section 9.8(c) called the “Spin-OffDistributed Assets”), then in each such case the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately before 5:00 p.m., New York City time, prior to the close of business on the tenth record date fixed for determination of stockholders 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 the Common Stock less (2) the Fair Market Value on such record date (as determined in good faith by the Board of 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 portion of the Distributed Assets so distributed applicable to one share of Common Stock. Such adjustment shall become effective immediately after the 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 to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock or (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, then, in lieu of the adjustment provided in this Section 9.8(c), adequate provision shall be made so that each Holder shall have the right to receive upon conversion, in addition to the shares of Common Stock, the kind and amount of assets, debt securities, or rights or warrants comprising the Distributed Assets the Holder would have received had such Holder converted such Notes immediately prior to the record date for the determination of stockholders 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.
(d) In case the Company shall make any distributions, by dividend or otherwise, consisting exclusively of cash to all or substantially all holders of outstanding shares of Common Stock, then, and in each such case, 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 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 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 made so that each Holder of a Note shall have the right to receive upon conversion, 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 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 (i) the numerator shall be the Spin-Off Market Price per share of the Common Stock on such 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 this Section 9.8(e) will occur at the earlier of (1) the 10th Trading Day immediately followingfrom, and including, the effective date of the Spin-Off will be increased based on and (2) the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the tenth Trading Day immediately following, and including, the effective date of the Initial Public Offering of the securities being distributed in the Spin-Off, if that Initial Public Offering is effected simultaneously with the Spin-Off; CR' = the new Conversion Rate in effect immediately after the tenth Trading Day immediately followingprovided, and includinghowever, the effective date of that, if (i) the Spin-Off; FMV0 = the average Off Market Price per Equity Interest of the Last Reported Sale Prices of the Capital Stock or similar equity interest Subsidiary so distributed to holders of Common Stock applicable to one share of Common Stock over is equal to or greater than the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Common Stock over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off. Such adjustment shall occur immediately after the tenth Trading Day immediately following, and including, the effective 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 “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the relevant Conversion Date. If any such dividend or distribution described in this clause (c) is declared but not paid or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If any cash dividend or distribution is made to all holders of Common Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-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 Current Market Price of the Common Stock on or (ii) the Trading Day 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 foregoing adjustment, adequate provision shall be made so that each Holder of a Note shall have the right to receive upon conversion, such distribution such Holder would have received had such Holder converted each Note immediately preceding prior to the Ex-Dividend Date record date for the determination of stockholders entitled to receive the distribution.
(f) In case a tender or exchange offer made by the Company or any Subsidiary shall expire and such distribution; and C = tender or exchange offer (as amended upon the amount in cash expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (as determined in good faith by the Company’s Board of Directors, whose determination shall be conclusive and described in a resolution of the Company distributes to holders Board of Common Stock. An adjustment to the Conversion Rate made pursuant to this clause (dDirectors) 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 as of the Common Stock on last time (the Trading Day next succeeding the last date on which “Expiration Time”) tenders or exchanges may be made pursuant to such tender or exchange offer, offer (as it may be amended) exceeds the Conversion Rate will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at the close Closing Sale Price of business on the last Trading Day a share of the 10 consecutive Trading Day period commencing Common Stock on the Trading Day next succeeding the date such tender or exchange offer expires; CR' = Expiration Time, the new Conversion Rate in effect immediately following shall be adjusted so that the last Trading Day 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 10 consecutive Trading Day period commencing aggregate consideration payable to stockholders based on the Trading Day next succeeding acceptance (up to any maximum specified in the date such tender or exchange offer expires; AC = terms of 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 = ) 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 immediately prior to (less any Purchased Shares) at the expiration Expiration Time and the Closing Sale Price of such tender or exchange offer; OS' = 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 immediately after (including any tendered or exchanged shares) at the expiration Expiration Time multiplied by the Closing Sale Price of such tender or exchange offer (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); and SP' = the average of the Last Reported Sale Prices a share of Common Stock over the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date Expiration Time, such tender or exchange offer expires. The adjustment to the Conversion Rate under this clause (e) shall become effective immediately prior to the opening of business on the day 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 DateExpiration Time. If the Company or one of its Subsidiaries is obligated to purchase Common Stock shares pursuant to any such tender or exchange offer offer, but are the Company is permanently prevented by applicable law from effecting any such purchase purchases or all such purchases are rescinded, the new 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.
(fg) Notwithstanding Upon conversion of the foregoing provisions of this Section 9.02Notes, no adjustment will be made thereunderthe Holders shall receive, 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 they receive shares of Common Stock equal Stock, in addition to the applicable Conversion RateCommon Stock issuable upon such conversion, multiplied by the principal amount rights issued under any shareholder rights plan the Company implements (expressed 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 thousands) accordance with the rights plan. If, and only if, the Holders of Notes receive rights under such shareholder rights plans as described in the Securities held by such holderpreceding sentence upon conversion of their Notes, without having then no other adjustment pursuant 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 9.8 shall 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 9.03connection with such shareholder rights plans.
(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 9.029.8, 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 The Company pays shall not pay any dividend or makes make any distribution on, or issues any rights, options or warrants in respect of, on shares of Common Stock held in the treasury by of 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.
(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 calculation 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
Samples: Indenture (Aar 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 Issuer shall: (i) pay a dividend, or make a distribution, exclusively in shares of Common Stock as a dividend or distribution its capital stock, on shares of the Common 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, 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 immediately prior to the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; CR' = , for the new Conversion Rate in effect immediately adjustment pursuant to this Section 6.06(a) as described below, shall be adjusted so that the Holder of any 2024 Notes thereafter surrendered for conversion shall be entitled to receive the cash and number of shares of Common Stock of the Issuer 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 2024 Notes been converted immediately prior to such record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; OS0 = the number of shares of Common Stock outstanding immediately prior . An adjustment made pursuant 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, and solely as a result of, such event. Such adjustment this Section 6.06(a) shall become effective immediately after (i) the Ex-Dividend Date for such applicable record date in the case of a dividend or distribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or (ii) reclassification of the date on which such split or combination becomes effective, as applicableIssuer’s Common Stock. If any dividend or distribution of the type described in this clause Section 9.02(a(i) above is declared but not so paid or made, the new Conversion Rate shall again be 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 distributes Issuer shall issue rights or warrants to all holders of its the Common Stock any rights or warrants entitling them to purchase, (for a period of not more than 45 expiring within 60 days after the Ex-Dividend Date date of issuance of such rights or warrants) to subscribe for the distribution, shares of or purchase Common Stock at a price per share less than the average Market Price per share 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 record date fixed for determination of shareholders entitled to receive such distributionrights or warrants, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to after such record date shall be adjusted so that the Ex-Dividend Date for such distribution; CR' = same shall equal the new Conversion Rate determined by multiplying the Conversion Rate in effect immediately after such record date by a fraction of which (i) the Ex-Dividend Date for such distribution; OS0 = numerator shall be the number of shares of Common Stock outstanding immediately prior to on such record date plus the Ex-Dividend Date for such distribution; X = the total number of additional shares of Common Stock issuable pursuant to such rights offered for subscription or warrants; purchase, and Y = (ii) the denominator shall be the number of shares of Common Stock equal to outstanding on such record date plus the number of shares which the aggregate offering price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices total number of shares so offered would purchase at the Market Price per share of Common Stock over on the 10 consecutive Trading Day period ending on earlier of such record date or the Trading Day immediately preceding the Ex-Dividend Date ex date for such distributionissuance of rights or warrants. For purposes Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of this clause Section 9.02(b)business on the day following the record date for the determination of shareholders entitled to receive such rights or warrants. 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 which 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 which would then be in effect if such record date for the determination of shareholders 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 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 shares 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. If any right or warrant described in this clause Section 9.02(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 9.02(b) shall become effective immediately after the Ex-Dividend Date for the applicable distribution.
(c) If In case the Company distributes shares of Capital StockIssuer shall, evidences of its indebtedness by dividend or other assets or property of the Company otherwise, distribute to all holders of the Common StockStock any assets, excluding:
debt securities or rights or warrants to purchase any of its securities (excluding (i) dividends any dividend, distribution or distributions as issuance covered by those referred to which an adjustment applies under clause (ain Section 6.06(a) or (bSection 6.06(b) above;
hereof and (ii) dividends any dividend or distributions distribution paid exclusively in cash; and
) (iii) Spin-Offs to which any of the provisions set forth below foregoing hereinafter in this clause (cSection 6.06(c) shall apply; 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 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 Ex-Dividend Date for such distribution; CR' = close of business on the new Conversion Rate in effect immediately after record date mentioned below by a fraction of which (A) the Ex-Dividend Date for such distribution; SP0 = numerator shall be the average of the Last Reported Sale Prices Market Price per share of the Common Stock over on the 10 consecutive Trading Day period ending on earlier of 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, whose determination shall be conclusive, and described in a certificate filed with the Trustee and the Paying Agent) of the shares of Capital Stock, evidences of indebtedness, assets Distributed Assets or property Securities so distributed with respect applicable to each outstanding one share of Common Stock on the Ex-Dividend Date for such distributionStock. Such adjustment shall become effective immediately after the Ex-Dividend Date record date for the applicable determination of shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this clause ; provided, however, that, if (ci) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit (a “Spin-Off”), the Conversion Rate in effect immediately before 5:00 p.m., New York City time, on the tenth Trading Day immediately following, and including, the effective date Fair Market Value of the Spin-Off will be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the tenth Trading Day immediately following, and including, the effective date portion of the Spin-Off; CR' = the new Conversion Rate in effect immediately after the tenth Trading Day immediately following, and including, the effective date of the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock Distributed Assets or similar equity interest Securities so distributed to holders of Common Stock applicable to one share of Common Stock over is equal to or greater than the first 10 consecutive Trading Day period immediately followingMarket 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 includingshares of Common Stock, the effective 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 Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Common Stock over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off. Such adjustment shall occur immediately after the tenth Trading Day immediately following, and including, the effective date of the Spin-Off; provided event 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 “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the relevant Conversion Date. If any such dividend or distribution described in this clause (c) is declared but not so paid or made, the new applicable Conversion Rate shall again be readjusted adjusted to be the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared.
(d) If any In case the Issuer shall declare a cash dividend or cash distribution is made to all or substantially all of the holders of Common Stock, the Conversion Rate will shall be adjusted based on increased so that the following formula: where, CR0 = applicable Conversion Rate shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the Ex-Dividend Date record date for such distribution; CR' = dividend or distribution by a fraction, (i) the new Conversion Rate in effect immediately after numerator of which shall be the Ex-Dividend Date for such distribution; SP0 = average of the Last Reported Sale Price of the Common Stock for the five consecutive Trading Days ending on the Trading Day immediately preceding the Exrecord date for such dividend or distribution (the “Pre-Dividend Date for Sale Price”) and (ii) the denominator of which shall be the Pre-Dividend Sale Price, minus the full amount of such distribution; and C = the amount in cash per dividend or cash distribution applicable to one share of Common Stock of (the Company distributes to holders of Common Stock. An “Dividend Adjustment Amount”), with such adjustment to the Conversion Rate made pursuant to this clause (d) shall become effective immediately after the Ex-Dividend Date record date for the applicable such dividend or distribution; provided that if the denominator of the foregoing fraction is less than $1.00 (including a negative amount), 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 Common Stock issuable upon such conversion, the amount of cash such Holder would have received had such Holder converted its 2024 Note solely into Common Stock at the then applicable Conversion Rate immediately prior to the record date for such cash dividend or cash distribution. If any such cash dividend or cash distribution described in this clause (d) is declared but not so paid or made, the new applicable Conversion Rate shall again be readjusted adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(e) If 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 prior to December 1, 2011, that constitutes a Fundamental Change (other than as described in clause (iv) of the Company definition of Fundamental Change) and 10% or any more of its Subsidiaries makes the Fair Market Value of the consideration for the Common Stock (as determined by the Board of 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 payment in respect U.S. national securities exchange or the Nasdaq National Market, then the 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 shares of a tender or exchange offer for Common Stock, Stock equal to the extent sum of (A) the Conversion Value and (B) the number of 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 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 cash 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 value 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 other consideration included in date on which the payment 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 exceeds such that the Conversion Rate in effect immediately before the Public Acquirer Change of Control shall be adjusted by a fraction:
(i) the numerator of which will be the average of the Last Reported Sale Price of the Common Stock on for the five consecutive Trading Day next succeeding Days prior to but excluding the last effective date on of such Public Acquirer Change of Control; and
(ii) the denominator of 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 average of the 10 Last Reported Sale Price of the Public Acquirer Common Stock for the five consecutive Trading Day period Days commencing on the Trading Day next succeeding the effective 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 Public Acquirer Change of shares of Common Stock outstanding immediately after the expiration of such tender or exchange offer (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); 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 madeControl.
(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 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 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 calculation 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
Samples: 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 Company, at any time or from time to time after the issuance of the Notes, shall (i) pay a dividend, or make a distribution on its Common Stock, exclusively in shares of its Common Stock or other Capital Stock of the Company; (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 as a dividend or distribution on any shares of the Common Company's Capital 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 immediately prior to the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; CR' = , for the new Conversion Rate in effect immediately after 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, or the effective date of such share split or share combination, as the case may be; OS0 = conversion shall be entitled to receive the number of shares of Common Stock outstanding 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 the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; and OS' = the number of shares of Common Stock outstanding immediately after, and solely as a result of, such event. Such An adjustment made pursuant to this Section 10.06(a) shall become effective immediately after (i) the Ex-Dividend Date for such applicable record date in the case of a dividend or distribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or (ii) reclassification of the date on which such split or combination becomes effective, as applicableCommon Stock. If any dividend or distribution of the type described in this clause Section 9.02(a(i) above is declared but not so paid or made, the new Conversion Rate shall again be 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 distributes 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 its the Common Stock any rights or warrants entitling them to purchase, subscribe for a period of not more than 45 days after the Ex-Dividend Date for the distribution, shares of or purchase Common Stock at a price per share less than the average Market Price per share 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 record date fixed for determination of shareholders entitled to receive such distributionrights or warrants, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to after such record date shall be adjusted so that the Ex-Dividend Date for such distribution; CR' = same shall equal the new Conversion Rate determined by multiplying the Conversion Rate in effect immediately after such record date by a fraction of which (i) the Ex-Dividend Date for such distribution; OS0 = numerator shall be the number of shares of Common Stock outstanding immediately prior to on such record date plus the Ex-Dividend Date for such distribution; X = the total number of additional shares of Common Stock issuable pursuant to such rights offered for subscription or warrants; purchase, and Y = (ii) the denominator shall be the number of shares of Common Stock equal to outstanding on such record date plus the number of shares which the aggregate offering price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices total number of shares so offered would purchase at the Market Price per share of Common Stock over (on the 10 consecutive Trading Day period ending on earlier of such record date or the Trading Day immediately preceding the Ex-Dividend Date ex date for such distributionissuance of rights or warrants). For purposes Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of this clause Section 9.02(b)business on the day following the record date for the determination of shareholders entitled to receive such rights or warrants. 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 which 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 which would then be in effect if such record date for the determination of shareholders 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 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 shares 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. If any right or warrant described in this clause Section 9.02(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 9.02(b) shall become effective immediately after the Ex-Dividend Date for the applicable distribution.
(c) If In case the Company distributes shares of Capital Stockshall, evidences of its indebtedness by dividend or other assets in a merger, amalgamation or property of the Company consolidation or otherwise, distribute to all holders of the Common Stock, excluding:
(i) dividends or distributions as to which an adjustment applies under clause (a) or (b) above;
(ii) dividends or distributions paid exclusively in cash; and
(iii) Spin-Offs to which the provisions set forth below in this clause (c) shall apply; then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution; CR' = the new Conversion Rate in effect immediately after the 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) of the shares of Capital Stock, any evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the Ex-Dividend Date for the applicable distribution. With respect to an adjustment pursuant to this clause (c) where there has been a payment of a dividend or other distribution on the Common Stock of 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 interestEquity 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 foregoing hereinafter in this Section 10.06(c) called the "DISTRIBUTED ASSETS OR NOTES") 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 10.06(c) has been made, exceeds 10% of the Distribution Adjustment 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 dividing 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 distribution below by a fraction of which (A) the numerator shall be the Distribution Adjustment Market Price per share of the Common Stock on the earlier of such record date or relating the Trading Day immediately preceding the ex date for such dividend or distribution, and (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, whose determination shall be conclusive, and described in a certificate filed with the Trustee and the Paying Agent) of the Distributed Assets or Notes 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 Notes so distributed applicable to one share of Common Stock is equal to or greater than the Distribution Adjustment Market Price of the Common Stock on the record date for the determination of shareholders entitled to receive such distribution or (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, 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 shares of Common Stock, the kind and amount of assets, debt securities, or rights or warrants comprising the Distributed Assets or Notes the Holder would have received had such Holder converted such 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 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 this Section 10.06(c), 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 (a “Spin-Off”)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 before 5:00 p.m., New York City time, prior to the close of business on the tenth record 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-Off Market Price per share of the Common Stock on such record date and (ii) the denominator shall be (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 on such record date. The adjustment to the Conversion Rate set forth in this Section 10.06(c) will occur at the earlier of (1) the 10th Trading Day immediately followingfrom, and including, the effective date of the Spin-Off will and (2) the date of the Initial Public Offering of the securities being distributed in the Spin-Off, if that Initial Public Offering is effected simultaneously with the Spin-Off.
(d) 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 outstanding shares of Common Stock, then, and in each such case, the Conversion Rate shall be increased based on adjusted so that the following formula: where, CR0 = same shall equal the Conversion Rate determined by dividing the Conversion Rate in effect immediately prior to the tenth Trading Day immediately following, and including, close of business on the effective record date fixed for the determination of the Spin-Off; CR' = the new Conversion Rate in effect immediately after the tenth Trading Day immediately following, and including, the effective date of the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of Common Stock applicable entitled to one share receive such distribution by a fraction of Common Stock over which (A) the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Common Stock over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off. Such adjustment shall occur immediately after the tenth Trading Day immediately following, and including, the effective 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 “Spin-Offs” to 10 Trading Days numerator shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the relevant Conversion Date. If any such dividend or distribution described in this clause (c) is declared but not paid or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If any cash dividend or distribution is made to all holders of Common Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-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 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 distribution; dividend or distribution and C = (B) the amount in cash denominator shall be (1) the Market Price per share of Common Stock on the earlier of such record date or the Company distributes to holders of Common Stock. An adjustment to Trading Day immediately preceding the Conversion Rate made pursuant to this clause (d) shall become effective immediately after the Ex-Dividend Date ex 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 declaredplus (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) If Upon conversion of the Company or any Notes, the Holders shall receive, if they receive shares of its Subsidiaries makes a payment in respect of a tender or exchange offer for Common Stock, in addition 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 Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to issuable upon such tender or exchange offerconversion, the Conversion Rate will be increased based on rights issued under any shareholder rights plan the following formula: where, CR0 = Company implements (notwithstanding the Conversion Rate in effect at occurrence of an event causing such rights to separate from 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 at or prior to the expiration 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 tender or exchange offer; OS' = shareholder rights plans as described in the number preceding sentence upon conversion of shares of Common Stock outstanding immediately after the expiration of such tender or exchange offer (after giving effect to the purchase or exchange of shares their Notes, then no other adjustment pursuant to such tender or exchange offer); 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 Section 10.06 shall be deemed replaced made in connection 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 madeshareholder rights plans.
(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 9.0210.06, 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. If the The Company pays shall not pay any dividend or makes make any distribution on, or issues any rights, options or warrants in respect of, on shares of Common Stock held in the treasury by of 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.
(lg) If Net-Share Settlement applies and any provision of this Article 9 requires a calculation Notwithstanding the foregoing, in the event of an average of the Daily VWAP over a span of multiple daysadjustment pursuant to Sections 10.06(c), (d) or (e), the Company will make appropriate "MAXIMUM CONVERSION RATE" shall initially be 18.6567 and shall be appropriately adjusted from time to time pursuant to any adjustments to the Daily Settlement Amount (determined in good faith by the Board of DirectorsSection 10.06(a) 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 calculation 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 effectiveand Section 10.06(b) hereof.
Appears in 1 contract
Samples: Supplemental Indenture (Fisher Scientific International Inc)
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 shall (i) pay a dividend, or make a distribution on its Common Stock, payable exclusively in shares of Common Stock as 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 distribution on 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 Common Company’s Capital 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 immediately prior to the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; CR' = , for the new Conversion Rate in effect immediately after 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, or the effective date of such share split or share combination, as the case may be; OS0 = conversion shall be entitled to receive the number of shares of Common Stock outstanding 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 the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; and OS' = the number of shares of Common Stock outstanding immediately after, and solely as a result of, such event. Such An adjustment made pursuant to this Section 9.8(a) shall become effective immediately after (i) the Ex-Dividend Date for such applicable record date in the case of a dividend or distribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or (ii) reclassification of the date on which such split or combination becomes effective, as applicableCommon Stock. If any dividend or distribution of the type described in this clause Section 9.02(a(i) above is declared but not so paid or made, the new Conversion Rate shall again be adjusted 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 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 distributes 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 its the Common Stock any rights or warrants entitling them to purchase, purchase Common Stock for a period of not more than 45 60 days after from the Ex-Dividend Date for the distribution, shares date of Common Stock issuance of such rights or warrants at a price per share less (or having a conversion price per share less) than the average Current Market Price per share 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 distributionStock, 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 Ex-Dividend Date close of business on the record date fixed for determination of stockholders entitled to receive such distribution; CR' = rights or warrants (prior to any adjustment in accordance with this Section 9.8(b)) by a fraction of which (i) the new Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution; OS0 = numerator shall be the number of shares of Common Stock outstanding immediately prior to on such record date plus the Ex-Dividend Date for such distribution; X = the total number of additional shares of Common Stock issuable pursuant to such rights offered for subscription or warrants; purchase, and Y = (ii) the denominator shall be the number of shares of Common Stock equal to outstanding on such record date plus the number of shares which the aggregate offering price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices total number of shares so offered would purchase at the Current Market Price per share of Common Stock over on the 10 consecutive Trading Day period ending on earlier of such record date and the Trading Day immediately preceding the Ex-Dividend Date ex date for such distributionissuance of rights or warrants. For purposes Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of this clause Section 9.02(b)business on the day following the record date for the determination of stockholders entitled to receive such rights or warrants. To the extent that shares of Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall immediately be readjusted to the Conversion Rate which 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 immediately 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 rights or warrants had not been fixed. In determining whether any rights or warrants entitle the Holders holders to subscribe for or purchase 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 shares 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. If any right or warrant described in this clause Section 9.02(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 9.02(b) shall become effective immediately after the Ex-Dividend Date for the applicable distribution.
(c) If In case the Company distributes shares of Capital Stockshall, evidences of its indebtedness by dividend or other assets in a merger, amalgamation or property of the Company consolidation or otherwise, distribute to all or substantially all holders of the Common Stock, excluding:
(i) dividends or distributions as to which an adjustment applies under clause (a) or (b) above;
(ii) dividends or distributions paid exclusively in cash; and
(iii) Spin-Offs to which the provisions set forth below in this clause (c) shall apply; then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution; CR' = the new Conversion Rate in effect immediately after the 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) of the shares of Capital Stock, any evidences of indebtednessIndebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the Ex-Dividend Date for the applicable distribution. With respect to an adjustment pursuant to this clause (c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, other securities, cash or similar equity interestassets (excluding (i) any dividend, distribution or issuance covered by those referred to in Section 9.8(a) or 9.8(b) hereof, (ii) any dividend or distribution paid exclusively in cash referred to in Section 9.8(d), 9.8(f) or 9.8(g) hereof or (iii) any dividend or distribution that constitutes a Spin-Off which is covered by Section 9.8(e) hereof), or rights or warrants to purchase any of or relating its securities (including the distribution of rights to all holders of Common Stock pursuant to a Subsidiary stockholders rights plan or other business unit 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)) (a any of the foregoing hereinafter in this Section 9.8(c) called the “Spin-OffDistributed Assets”), then in each such case the Conversion Rate shall be adjusted so that the same shall equal the Conversion Rate determined by multiplying the Conversion Rate in effect immediately before 5:00 p.m., New York City time, prior to the close of business on the tenth record date fixed for determination of stockholders 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 the Common Stock less (2) the Fair Market Value on such record date (as determined in good faith by the Board of 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 portion of the Distributed Assets so distributed applicable to one share of Common Stock. Such adjustment shall become effective immediately after the 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 to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock or (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, then, in lieu of the adjustment provided in this Section 9.8(c), adequate provision shall be made so that each Holder shall have the right to receive upon conversion, in addition to the shares of Common Stock, the kind and amount of assets, debt securities, or rights or warrants comprising the Distributed Assets the Holder would have received had such Holder converted such Notes immediately prior to the record date for the determination of stockholders 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.
(d) In case the Company shall make any distributions, by dividend or otherwise, consisting exclusively of cash to all or substantially all holders of outstanding shares of Common Stock, then, and in each such case, 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 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 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 made so that each Holder of a Note shall have the right to receive upon conversion, 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 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 (i) the numerator shall be the Spin-Off Market Price per share of the Common Stock on such 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 this Section 9.8(e) will occur at the earlier of (1) the 10th Trading Day immediately followingfrom, and including, the effective date of the Spin-Off will be increased based on and (2) the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the tenth Trading Day immediately following, and including, the effective date of the Initial Public Offering of the securities being distributed in the Spin-Off, if that Initial Public Offering is effected simultaneously with the Spin-Off; CR' = the new Conversion Rate in effect immediately after the tenth Trading Day immediately followingprovided, and includinghowever, the effective date of that, if (i) the Spin-Off; FMV0 = the average Off Market Price per Equity Interest of the Last Reported Sale Prices of the Capital Stock or similar equity interest Subsidiary so distributed to holders of Common Stock applicable to one share of Common Stock over is equal to or greater than the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Common Stock over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off. Such adjustment shall occur immediately after the tenth Trading Day immediately following, and including, the effective 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 “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the relevant Conversion Date. If any such dividend or distribution described in this clause (c) is declared but not paid or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If any cash dividend or distribution is made to all holders of Common Stock, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-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 Current Market Price of the Common Stock on or (ii) the Trading Day 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 foregoing adjustment, adequate provision shall be made so that each Holder of a Note shall have the right to receive upon conversion, such distribution such Holder would have received had such Holder converted each Note immediately preceding prior to the Ex-Dividend Date record date for the determination of stockholders entitled to receive the distribution.
(f) In case a tender or exchange offer made by the Company or any Subsidiary shall expire and such distribution; and C = tender or exchange offer (as amended upon the amount in cash expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a Fair Market Value (as determined in good faith by the Company’s Board of Directors, whose determination shall be conclusive and described in a resolution of the Company distributes to holders Board of Common Stock. An adjustment to the Conversion Rate made pursuant to this clause (dDirectors) 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 as of the Common Stock on last time (the Trading Day next succeeding the last date on which “Expiration Time”) tenders or exchanges may be made pursuant to such tender or exchange offer, offer (as it may be amended) exceeds the Conversion Rate will be increased based on the following formula: where, CR0 = the Conversion Rate in effect at the close Closing Sale Price of business on the last Trading Day a share of the 10 consecutive Trading Day period commencing Common Stock on the Trading Day next succeeding the date such tender or exchange offer expires; CR' = Expiration Time, the new Conversion Rate in effect immediately following shall be adjusted so that the last Trading Day 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 10 consecutive Trading Day period commencing aggregate consideration payable to stockholders based on the Trading Day next succeeding acceptance (up to any maximum specified in the date such tender or exchange offer expires; AC = terms of 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 = ) 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 immediately prior to (less any Purchased Shares) at the expiration Expiration Time and (b) the Closing Sale Price of such tender or exchange offer; OS' = 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 immediately after (including any Purchased Shares) at the expiration Expiration Time multiplied by the Closing Sale Price of such tender or exchange offer (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); and SP' = the average of the Last Reported Sale Prices a share of Common Stock over the 10 consecutive Trading Day period commencing on the Trading Day next succeeding the date Expiration Time, such tender or exchange offer expires. The adjustment to the Conversion Rate under this clause (e) shall become effective immediately prior to the opening of business on the day 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 DateExpiration Time. If the Company or one of its Subsidiaries is obligated to purchase Common Stock shares pursuant to any such tender or exchange offer offer, but are the Company is permanently prevented by applicable law from effecting any such purchase purchases or all such purchases are rescinded, the new 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.
(fg) Notwithstanding In the foregoing provisions 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 this Section 9.02, no adjustment will be made thereunder, nor shall an adjustment be made to the ability of a Holder to convert, Common Stock for any distribution described therein if the Holder will otherwise participate in the distribution five consecutive Trading Days ending on the same terms as holders last date of such repurchase (the excess amount, the “Repurchase Premium”), and such repurchase (together with any other repurchases 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 Subsidiary concluded within 12 months of its Subsidiaries;
(iiisuch repurchase, the consideration for which involved a Repurchase Premium) upon resulted in the issuance payment by the Company or any Subsidiary of any shares of Common Stock pursuant an aggregate consideration exceeding an amount equal to any option, warrant, right, or exercisable, exchangeable or convertible security not described in clause (ii) above and outstanding as 10% of the Exchanged Securities Issue Date;
(iv) for 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 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.fraction,
(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 numerator of which it has knowledge is still in effect. Promptly after delivery of such certificate, shall be 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 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 calculation 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.9.8
Appears in 1 contract
Samples: 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 Issuer shall: (i) pay a dividend, or make a distribution, exclusively in shares of Common Stock as a dividend or distribution its capital stock, on shares of the Common 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, 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 immediately prior to the Ex-Dividend Date for such dividend record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; CR' = , for the new Conversion Rate in effect immediately adjustment pursuant to this Section 6.06(a) as described below, shall be adjusted so that the Holder of any 2023 Notes thereafter surrendered for conversion shall be entitled to receive the cash and number of shares of Common Stock of the Issuer 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 2023 Notes been converted immediately prior to such record date or distribution, or the effective date of such share split or share combinationdate, as the case may be; OS0 = the number of shares of Common Stock outstanding immediately prior . An adjustment made pursuant 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, and solely as a result of, such event. Such adjustment this Section 6.06(a) shall become effective immediately after (i) the Ex-Dividend Date for such applicable record date in the case of a dividend or distribution and shall become effective immediately after the applicable effective date in the case of subdivision, combination or (ii) reclassification of the date on which such split or combination becomes effective, as applicableIssuer's Common Stock. If any dividend or distribution of the type described in this clause Section 9.02(a(i) above is declared but not so paid or made, the new Conversion Rate shall again be 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 distributes Issuer shall issue rights or warrants to all holders of its the Common Stock any rights or warrants entitling them to purchase, (for a period of not more than 45 expiring within 60 days after the Ex-Dividend Date date of issuance of such rights or warrants) to subscribe for the distribution, shares of or purchase Common Stock at a price per share less than the average Market Price per share 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 record date fixed for determination of shareholders entitled to receive such distributionrights or warrants, the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to after such record date shall be adjusted so that the Ex-Dividend Date for such distribution; CR' = same shall equal the new Conversion Rate determined by multiplying the Conversion Rate in effect immediately after such record date by a fraction of which (i) the Ex-Dividend Date for such distribution; OS0 = numerator shall be the number of shares of Common Stock outstanding immediately prior to on such record date plus the Ex-Dividend Date for such distribution; X = the total number of additional shares of Common Stock issuable pursuant to such rights offered for subscription or warrants; purchase, and Y = (ii) the denominator shall be the number of shares of Common Stock equal to outstanding on such record date plus the number of shares which the aggregate offering price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices total number of shares so offered would purchase at the Market Price per share of Common Stock over on the 10 consecutive Trading Day period ending on earlier of such record date or the Trading Day immediately preceding the Ex-Dividend Date ex date for such distributionissuance of rights or warrants. For purposes Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after the opening of this clause Section 9.02(b)business on the day following the record date for the determination of shareholders entitled to receive such rights or warrants. 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 which 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 which would then be in effect if such record date for the determination of shareholders 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 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 shares 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. If any right or warrant described in this clause Section 9.02(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 9.02(b) shall become effective immediately after the Ex-Dividend Date for the applicable distribution.
(c) If In case the Company distributes shares of Capital StockIssuer shall, evidences of its indebtedness by dividend or other assets or property of the Company otherwise, distribute to all holders of the Common StockStock any assets, excluding:
debt securities or rights or warrants to purchase any of its securities (excluding (i) dividends any dividend, distribution or distributions as issuance covered by those referred to which an adjustment applies under clause (ain Section 6.06(a) or (bSection 6.06(b) above;
hereof and (ii) dividends any dividend or distributions distribution paid exclusively in cash; and
) (iii) Spin-Offs to which any of the provisions set forth below foregoing hereinafter in this clause (cSection 6.06(c) shall apply; 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 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 Ex-Dividend Date for such distribution; CR' = close of business on the new Conversion Rate in effect immediately after record date mentioned below by a fraction of which (A) the Ex-Dividend Date for such distribution; SP0 = numerator shall be the average of the Last Reported Sale Prices Market Price per share of the Common Stock over on the 10 consecutive Trading Day period ending on earlier of 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, whose determination shall be conclusive, and described in a certificate filed with the Trustee and the Paying Agent) of the shares of Capital Stock, evidences of indebtedness, assets Distributed Assets or property Securities so distributed with respect applicable to each outstanding one share of Common Stock on the Ex-Dividend Date for such distributionStock. Such adjustment shall become effective immediately after the Ex-Dividend Date record date for the applicable determination of shareholders entitled to receive such distribution. With respect to an adjustment pursuant to this clause ; provided, however, that, if (ci) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit (a “Spin-Off”), the Conversion Rate in effect immediately before 5:00 p.m., New York City time, on the tenth Trading Day immediately following, and including, the effective date Fair Market Value of the Spin-Off will be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the tenth Trading Day immediately following, and including, the effective date portion of the Spin-Off; CR' = the new Conversion Rate in effect immediately after the tenth Trading Day immediately following, and including, the effective date of the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock Distributed Assets or similar equity interest Securities so distributed to holders of Common Stock applicable to one share of Common Stock over is equal to or greater than the first 10 consecutive Trading Day period immediately followingMarket 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 includingshares of Common Stock, the effective 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 Spin-Off; and MP0 = the average of the Last Reported Sale Prices of Common Stock over the first 10 consecutive Trading Day period immediately following, and including, the effective date of the Spin-Off. Such adjustment shall occur immediately after the tenth Trading Day immediately following, and including, the effective date of the Spin-Off; provided event 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 “Spin-Offs” to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the relevant Conversion Date. If any such dividend or distribution described in this clause (c) is declared but not so paid or made, the new applicable Conversion Rate shall again be readjusted adjusted to be the Conversion Rate that which would then be in effect if such dividend or distribution had not been declared.
(d) If any In case the Issuer shall declare a cash dividend or cash distribution is made to all or substantially all of the holders of Common Stock, the Conversion Rate will shall be adjusted based on increased so that the following formula: where, CR0 = applicable Conversion Rate shall equal the price determined by multiplying the Conversion Rate in effect immediately prior to the Ex-Dividend Date record date for such distribution; CR' = dividend or distribution by a fraction,
(i) the new Conversion Rate in effect immediately after numerator of which shall be the Ex-Dividend Date for such distribution; SP0 = average of the Last Reported Sale Price of the Common Stock for the five consecutive Trading Days ending on the Trading Day immediately preceding the Exrecord date for such dividend or distribution (the "Pre-Dividend Date for Sale Price"), and
(ii) the denominator of which shall be the Pre-Dividend Sale Price, minus the full amount of such distribution; and C = the amount in cash per dividend or cash distribution applicable to one share of Common Stock of (the Company distributes to holders of Common Stock. An "Dividend Adjustment Amount"), with such adjustment to the Conversion Rate made pursuant to this clause (d) shall become effective immediately after the Ex-Dividend Date record date for the applicable such dividend or distribution; provided that if the denominator of the foregoing fraction is less than $1.00 (including a negative amount), 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 Common Stock issuable upon such conversion, the amount of cash such Holder would have received had such Holder converted its 2023 Note solely into Common Stock at the then applicable Conversion Rate immediately prior to the record date for such cash dividend or cash distribution. If any such cash dividend or cash distribution described in this clause (d) is declared but not so paid or made, the new applicable Conversion Rate shall again be readjusted adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(e) If a Holder elects to convert 2023 Notes in connection with a corporate transaction that occurs on or prior to July 15, 2008, that constitutes a Fundamental Change (other than as described in clause (iv) of the Company definition of Fundamental Change) and 10% or any more of its Subsidiaries makes a payment in respect the Fair Market Value of a tender or exchange offer the consideration 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 Trading Day next succeeding the last 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 , whose determination shall be conclusive evidence of such tender 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 offer; OS' = or the number of shares of Common Stock outstanding immediately after the expiration of such tender or exchange offer (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); 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 Nasdaq National Market, then the Conversion Rate under this clause (e) shall become effective immediately following for the tenth Trading Day next succeeding the date 2023 Notes surrendered for conversion by 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 Holder shall be deemed replaced with adjusted so that 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 Holder will be made thereunder, nor shall an adjustment be made entitled 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 receive cash and shares of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount sum of (expressed in thousandsA) 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 Value and (B) the Conversion Rate will be made (except on account number 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 additional shares of Common Stock pursuant (the "Additional Shares") determined in the manner set forth below, subject in each case 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 Issuer's payment elections as 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 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 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 calculation 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.6.13
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