Conversion Rate Adjustments. The Conversion Rate shall be adjusted from time to time by the Company as follows, except that the Company shall not make any adjustment if holders of Securities may participate, as a result of holding the Securities, in the transaction described without having to convert their Securities. (a) If the Company, at any time or from time to time while any of the Securities are outstanding, pays a dividend or make a distribution in Common Shares to all holders of its outstanding Common Shares, or if the Company subdivides or combines its Common Shares then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such event CR' = the Conversion Rate in effect immediately after such event OS0 = the number of Common Shares outstanding immediately prior to such event OS' = the number of Common Shares outstanding immediately after such event Such adjustment shall become effective immediately after the opening of business on the day following the Record Date for such dividend or distribution, or the date fixed for determination for such share split or share combination. If any dividend or distribution of the type described in this Section 13.4(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared. (b) If the Company, at any time or from time to time while any of the Securities are outstanding, issues to all or substantially all holders of its outstanding Common Shares certain rights or warrants to purchase Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) at a price per share (or having a conversion, exchange or exercise price per share) less than the Closing Sale Price of Common Shares on the Record Date for shareholders entitled to receive such rights and warrants, which rights or warrants are exercisable for not more than 60 days, the Conversion Rate shall be adjusted based on the following formula (provided that the Conversion Rate shall be readjusted to the extent that such rights or warrants are not exercised prior to their expiration): where, CR0 = the Conversion Rate in effect immediately prior to such event CR' = the Conversion Rate in effect immediately after such event OS0 = the number of Common Shares outstanding on the close of business on the next Business Day following such Record Date X = the total number of Common Shares issuable pursuant to such rights Y = the number of Common Shares equal to the aggregate offering price that the total number of shares so offered would purchase at such Closing Sale Price of Common Shares on the Record Date of such issuance determined by multiplying such total number of shares so offered by the exercise price of such rights or warrants and dividing the product so obtained by such Closing Sale Price. Such adjustment shall become effective immediately after the opening of business on the day following the date of announcement of such issuance. To the extent that Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered pursuant to such rights or warrants, upon the expiration or termination 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 the delivery of only the number of Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually delivered. In the event that 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 the date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase Common Shares at less than such Closing Sale Price, and in determining the aggregate offering price of such Common Shares, there shall be taken into account any consideration received for such rights or warrants and the value of such consideration, if other than cash, to be determined in good faith by the Board of Directors of the Company. For the purposes of this Section 13.4(b), rights or warrants distributed by the Company to all holders of its Common Shares entitling them to subscribe for or purchase shares of the Company's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (1) are deemed to be transferred with such Common Shares; (2) are not exercisable; and (3) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 13.4(b) (and no adjustment to the Conversion Price under this Section 13.4(b) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.4(b). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.4(b) was made, (1) in the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any Holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder of Common Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all applicable holders of Common Shares as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued. (c) If the Company, at any time or from time to time while the Securities are outstanding, distributes to all or substantially all holders of its Common Shares, Common Shares of the Company, evidences of its indebtedness or assets, including securities, but excluding: (i) dividends or distributions referred to in Section 13.4(a); (ii) rights or warrants referred to in Section 13.4(b); and (iii) dividends or distributions referred to in Section 13.4(d); then the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such distribution CR' = the Conversion Rate in effect immediately after such distribution SP0 = the Current Market Price of Common Shares on the Record Date for such distribution FMV = the fair market value (as determined by the Board of Directors of the Company) of the Common Shares, evidences of indebtedness, assets or property distributed with respect to each outstanding Common Share on the Record Date for such distribution Such adjustment shall become effective immediately prior to the opening of business on the day following the Record Date for such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 13.4(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive, in addition to the Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of conversion, in which case the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Shares, Common Shares, evidences of indebtedness or assets, subject to readjustment in the event of the expiration, termination or redemption of such rights. With respect to an adjustment pursuant to this Section 13.4(c) where there has been a payment of a dividend or other distribution on the Common Shares or common shares 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 effective date fixed for determination of shareholders entitled to receive the distribution shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such distribution CR' = the Conversion Rate in effect immediately after such distribution FMV0 = the average of the Closing Sale Prices of the Common Shares or similar equity interest distributed to holders of Common Shares applicable to one common share over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted MP0 = the average of the Closing Sale Prices of Common Shares over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted The adjustment to the Conversion Rate under the preceding paragraph will occur on the fourteenth Trading Day after the date on which "Ex-Dividend Trading" commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted. (d) If any cash dividend or other distribution is made to all or substantially all holders of Common Shares, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect on the Record Date for such distribution CR' = the Conversion Rate in effect immediately after the Record Date for such distribution SP0 = the Current Market Price of one of the Common Shares on the Record Date for such distribution C = the amount in cash per share the Company distributes to holders of Common Shares. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Record Date for such dividend or distribution; provided that if such dividend or distribution is not paid or made, the Conversion Rate shall again be adjusted to be 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 offer or exchange offer for Common Shares to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the Current Market Price per Common Share on the Trading Day immediately preceding the date such tender offer or exchange offer is announced, the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect on the date such tender or exchange offer expires CR' = the Conversion Rate in effect on the day next succeeding the date such tender or exchange offer expires AC = the fair market value (as determined by the Board of Directors) of the aggregate consideration paid or payable for shares purchased in such tender or exchange offer OS0 = the number of Common Shares outstanding on the Trading Day immediately preceding the date such tender or exchange offer is announced OS' = the number of Common Shares outstanding less any shares purchased in the tender or exchange offer at the time such tender or exchange offer expires SP' = the Current Market Price of Common Shares on the Trading Day immediately preceding the date such tender or exchange offer is announced. If the Company is obligated to repurchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange had not been made. (f) For purposes of this Section 13.4, the following terms shall have the meaning indicated:
Appears in 2 contracts
Samples: Indenture (Minefinders Corp Ltd.), Indenture (Minefinders Corp Ltd.)
Conversion Rate Adjustments. The Conversion Rate shall be adjusted from time to time by the Company as follows, except that the Company shall not make any adjustment to the Conversion Rate if holders of Securities Holders may participate, as a result of holding the Securities, in the transaction described below without having to convert their Securities.
(a) If the Company, at any time or from time to time while any of the Securities are outstanding, pays a dividend or make makes a distribution in Common Shares to all holders of its outstanding Common Shares, or if the Company subdivides or combines its Common Shares Shares, 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 of such event dividend or distribution or the effective date of such subdivision or combination, as applicable CR' = the Conversion Rate in effect immediately after such event Ex-Dividend Date or effective date, as applicable OS0 = the number of Common Shares outstanding immediately prior to such event Ex-Dividend Date or effective date, as applicable OS' = the number of Common Shares outstanding immediately prior to such Ex-Dividend Date or effective date, as applicable, after giving pro forma effect to such event dividend, distribution, subdivision or combination Such adjustment shall become effective immediately after the opening of business 9:00 a.m., New York City time, on the day Business Day following the Record Date for such dividend or distribution, or the date fixed for determination for such share split Common Share subdivision or share combination. If any dividend or distribution of the type described in this Section 13.4(a13.04(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) If the Company, at any time or from time to time while any of the Securities are outstanding, issues distributes to holders of all or substantially all holders of its outstanding Common Shares certain rights or warrants to purchase Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) at a price per share (or having a conversion, exchange or exercise price per share) Common Share less than the Closing Sale Price of the Common Shares on the Record Date for shareholders entitled to receive such rights and warrants, which rights or warrants are exercisable for not more than 60 days, the Conversion Rate shall be adjusted based on the following formula (provided that the Conversion Rate shall be readjusted to the extent that such rights or warrants are not exercised prior to their expiration): where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date of such event distribution CR' = the Conversion Rate in effect immediately after such event Ex-Dividend Date OS0 = the number of Common Shares outstanding on the close of business on the next Business Day following immediately after such Record Ex-Dividend Date X = the total number of Common Shares issuable pursuant to such rights or warrants Y = the number of Common Shares equal to the quotient of (a) the aggregate offering price that payable to exercise all such rights or warrants and (b) the total number average of shares so offered would purchase at such the Closing Sale Price of the Common Shares for the 10 consecutive Trading Days ending on the Record Date Trading Day immediately preceding the date of such announcement for the issuance determined by multiplying such total number of shares so offered by the exercise price of such rights or warrants and dividing the product so obtained by such Closing Sale Price. Such adjustment shall become effective immediately after the opening of business 9:00 a.m., New York City time, on the day Business Day following the date of announcement of the issuance of such issuancerights or warrants. To the extent that Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered pursuant to such rights or warrants, upon the expiration or termination 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 the delivery of only the number of Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually delivered. In the event that 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 the date fixed for the determination of stockholders shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase Common Shares at less than such Closing Sale Price, and in determining the aggregate offering price of such Common Shares, there shall be taken into account any consideration received for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined in good faith by the Board of Directors of the Company. For the purposes of this Section 13.4(b13.04(c), rights or warrants distributed by the Company to all holders of its the Common Shares entitling them to subscribe for or purchase shares of the Company's capital stock ’s Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("“Trigger Event"”): (1i) are deemed to be transferred with such Common Shares; (2ii) are not exercisable; and (3iii) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 13.4(b13.04(c) (and no adjustment to the Conversion Price under this Section 13.4(b13.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.4(b13.04(c). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.4(b13.04(c) was made, (1A) in the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any Holders holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder of Common Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all applicable holders of Common Shares as of the date of such redemption or repurchase, and (2B) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(c) If the Company, at any time or from time to time while the Securities are outstanding, distributes to holders of all or substantially all holders of its the Common Shares, Common Shares of the CompanyShares, evidences of its indebtedness or assetsassets or property, including securities, but excluding:
(i) dividends or distributions referred to in Section 13.4(a13.04(a);
(ii) rights or warrants referred to in Section 13.4(b13.04(c); and
(iii) dividends or distributions referred to paid exclusively in Section 13.4(d)cash; then the Conversion Rate shall 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 Conversion Rate in effect immediately after such distribution Ex-Dividend Date SP0 = the Current Market Price of the Common Shares on the Record Trading Day immediately preceding such Ex-Dividend Date for such distribution FMV = the fair market value (as determined by the Board of Directors of the Company) of the Common Shares, evidences of indebtedness, assets or property distributed with respect to each outstanding Common Share on the Record Date for such distribution Such adjustment shall become effective immediately prior to the opening of business 9:00 a.m., New York City time, on the day Business Day following the Record Date for such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 13.4(c13.04(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive, in addition to the Common Shares, the rights under the rights plan unless the such rights are in respect of Ineligible Consideration or such rights have separated from the Common Shares at the time of conversion, in which case the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Shares, Common Shares, evidences of indebtedness or assetsassets or property as described in this Section 13.04(c), subject to readjustment in the event of the expiration, termination or redemption of such rights. With respect to an adjustment pursuant to this Section 13.4(c13.04(c) where there has been a payment of a dividend or other distribution on the Common Shares or common shares 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 effective date fixed for determination of shareholders entitled to receive the distribution Spin-Off shall be increased based on the following formulaformula in lieu of the formula above: where, CR0 = the Conversion Rate in effect immediately prior to such distribution 5:00 p.m., New York City time, on the effective date of the Spin-Off CR' = the Conversion Rate in effect immediately after such distribution the effective date of the Spin-Off FMV0 = the average of the Closing Sale Prices of the Common Shares or similar equity interest distributed to holders of Common Shares applicable to one common share Common Share over the ten 10 consecutive Trading-Day period commencing on on, and including including, the fifth Trading Day after effective date of the date on which ExSpin-Dividend Trading commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted Off MP0 = the average of the Closing Sale Prices of the Common Shares over the ten 10 consecutive Trading-Day period commencing on on, and including including, the fifth Trading Day after effective date of the date on which ExSpin-Dividend Trading commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted Off The adjustment to the Conversion Rate under the preceding paragraph will occur on the fourteenth 10th Trading Day after from, and including, the effective date of the Spin-Off and shall be applied on a retroactive basis from, and including, the effective date of the Spin-Off; provided that in respect of any conversion occurring prior to the effective date of the Spin-Off with respect to which "the settlement date would occur during the 10 Trading Days from, and including, the effective date of any Spin-Off, references with respect to the Spin-Off to the 10 consecutive Trading-Day period shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the settlement date in determining the applicable Conversion Rate; provided, further, that in respect of any conversion occurring prior the effective date of the Spin-Off with respect to which the settlement date would occur during the three Trading Days from, and including, the effective date of such Spin-Off, references to the 10 consecutive Trading-Day period shall be deemed replaced with a three consecutive Trading-Day period with such adjustment to the Conversion Rate being applied on a retroactive basis from, and including, the effective date of the Spin-Off.
(i) If any regular, quarterly cash dividend or distribution made to all or substantially all holders of Common Shares is in excess of $0.09 per Common Share (the “Initial Dividend Threshold”), the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Trading" commences Date for such dividend or distribution CR' = the Conversion Rate in effect immediately after such Ex-Dividend Date SP0 = the Current Market Price of the Common Shares on the NYSE Amex Equities or Trading Day immediately preceding such other national or regional exchange or market on which Ex-Dividend Date C = the Securities are then listed or quotedamount in cash per share the Company distributes to holders of Common Shares in excess of the Initial Dividend Threshold The Initial Dividend Threshold is subject to adjustment in a manner inversely proportional to adjustments to the Conversion Rate; provided, that no adjustment will be made to the dividend threshold amount for any adjustment made to the Conversion Rate under this Section 13.04(d)(i)or Section 13.04(d)(ii).
(dii) If any cash dividend or other distribution that is not a regular, quarterly cash dividend or distribution is made to all or substantially all holders of Common Shares, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect on immediately prior to the Record Ex-Dividend Date for such dividend or distribution CR' = the Conversion Rate in effect immediately after the Record such Ex-Dividend Date for such distribution SP0 = the Current Market Price of one of the Common Shares on the Record Trading Day immediately preceding such Ex-Dividend Date for such distribution C = the amount in cash per share the Company distributes to holders of Common Shares. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Record Date for such dividend or distribution; provided that if such dividend or distribution is not paid or made, the Conversion Rate shall again be adjusted to be 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 offer or exchange offer for the Common Shares Shares, to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the Current Market Closing Sale Price per of the Common Share Shares on the Trading Day immediately preceding next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer is announcedoffer, the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect on immediately prior to the effective date such tender or exchange offer expires of the adjustment CR' = the Conversion Rate in effect on immediately after the day next succeeding effective date of the date such tender or exchange offer expires adjustment AC = the fair market value (as determined by the Board of Directors) of the aggregate consideration paid or payable for shares purchased accepted for purchase or exchange in such tender or exchange offer OS0 = the number of Common Shares outstanding on the Trading Day immediately preceding the date such tender or exchange offer is announced expires OS' = the number of Common Shares outstanding less any shares purchased Common Shares accepted for purchase or exchange in the tender or exchange offer at the time such tender or exchange offer expires SP' = the Current Market Price of the Common Shares on the Trading Day immediately preceding next succeeding the date such tender or exchange offer is announcedexpires The adjustment to the Conversion Rate under this Section 13.04(e) shall occur on the 10th Trading Day from, and including, the Trading Day next succeeding the date such tender or exchange offer expires and shall be applied on a retroactive basis from, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that in respect of any conversion occurring prior to the date such tender or exchange offer expires with respect to which the settlement date would occur during the 10 Trading Days from, and including, the Trading Day next succeeding the date such tender or exchange offer expires, references with respect to the tender or exchange offer to the 10 consecutive Trading-Day period shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Trading Day next succeeding the date such tender or exchange offer expires and the settlement date in determining the applicable Conversion Rate. If the Company is obligated to repurchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange had not been made.
(f) For purposes of this Section 13.413.04, the following terms shall have the meaning indicated:
Appears in 2 contracts
Samples: Indenture (Biovail Corp International), Indenture (Biovail Corp International)
Conversion Rate Adjustments. The Conversion Rate shall be adjusted from time to time by the Company as follows, except that the Company shall not make any adjustment if holders of Securities may participate, as a result of holding the Securities, in the transaction described without having to convert their Securities.
(a) If the Company, at any time or from time to time while any of the Securities are outstanding, pays a dividend or make a distribution in Common Shares to all holders of its outstanding Common Shares, or if the Company subdivides or combines its Common Shares then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such event CR' = the Conversion Rate in effect immediately after such event OS0 = the number of Common Shares outstanding immediately prior to such event OS' = the number of Common Shares outstanding immediately after such event Such adjustment shall become effective immediately after the opening of business on the day following the Record Date for such dividend or distribution, or the date fixed for determination for such share split or share combination. If any dividend or distribution of the type described in this Section 13.4(a11.04(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) If the Company, at any time or from time to time while any of the Securities are outstanding, issues to all or substantially all holders of its outstanding Common Shares certain rights or warrants to purchase Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) at a price per share (or having a conversion, exchange or exercise price per share) less than the Closing Sale Price of Common Shares on the Record Date for shareholders entitled to receive such rights and warrants, which rights or warrants are exercisable for not more than 60 days, the Conversion Rate shall be adjusted based on the following formula (provided that the Conversion Rate shall be readjusted to the extent that such rights or warrants are not exercised prior to their expiration): where, CR0 = the Conversion Rate in effect immediately prior to such event CR' = the Conversion Rate in effect immediately after such event OS0 = the number of Common Shares outstanding on the close of business on the next Business Day following such Record Date X = the total number of Common Shares issuable pursuant to such rights Y = the number of Common Shares equal to the quotient of (A) the aggregate offering price that payable to exercise all such rights or warrants and (B) the total number average of shares so offered would purchase at such the Closing Sale Price Sales Prices of Common Shares for the 10 consecutive Trading Days ending on the Record Date Business Day immediately preceding the date of such announcement for the issuance determined by multiplying such total number of shares so offered by the exercise price of such rights or warrants and dividing the product so obtained by such Closing Sale Price. Such adjustment shall become effective immediately after the opening of business on the day following the date of announcement of such issuance. To the extent that Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered pursuant to such rights or warrants, upon the expiration or termination 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 the delivery of only the number of Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually delivered. In the event that 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 the date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase Common Shares at less than such Closing Sale Price, and in determining the aggregate offering price of such Common Shares, there shall be taken into account any consideration received for such rights or warrants and the value of such consideration, if other than cash, to be determined in good faith by the Board of Directors of the Company. For the purposes of this Section 13.4(b11.04(b), rights or warrants distributed by the Company to all holders of its Common Shares entitling them to subscribe for or purchase shares of the Company's capital stock Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (1) are deemed to be transferred with such Common Shares; (2) are not exercisable; and (3) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 13.4(b11.04(b) (and no adjustment to the Conversion Price under this Section 13.4(b) will 11.04(b)will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.4(b11.04(b). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.4(b11.04(b) was made, (1) in the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any Holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder of Common Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all applicable holders of Common Shares as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(c) If the Company, at any time or from time to time while the Securities are outstanding, distributes to all or substantially all holders of its Common Shares, Common Shares of the Company, evidences of its indebtedness or assets, including securities, but excluding:
(i) dividends or distributions referred to in Section 13.4(a11.04(a);
(ii) rights or warrants referred to in Section 13.4(b11.04(b); and
(iii) dividends or distributions referred to in Section 13.4(d11.04(d); then the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such distribution CR' = the Conversion Rate in effect immediately after such distribution SP0 = the Current Market Price of Common Shares on the such Record Date for such distribution FMV = the fair market value (as determined by the Board of Directors of the CompanyCompany and subject to the approval of the Toronto Stock Exchange) of the Common Shares, evidences of indebtedness, assets or property distributed with respect to each outstanding Common Share on the Record Date for such distribution Such adjustment shall become effective immediately prior to the opening of business on the day following the Record Date for such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 13.4(c11.04(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive, in addition to the Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of conversion, in which case the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Shares, Common Shares, evidences of indebtedness or assets, subject to readjustment in the event of the expiration, termination or redemption of such rights. With respect to an adjustment pursuant to this Section 13.4(c11.04(c) where there has been a payment of a dividend or other distribution on the Common Shares or common shares 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 effective date fixed for determination of shareholders entitled to receive the distribution shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such distribution CR' = the Conversion Rate in effect immediately after such distribution FMV0 = the average of the Closing Sale Prices of the Common Shares or similar equity interest distributed to holders of Common Shares applicable to one common share over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the NYSE Amex Equities The American Stock Exchange or such other national or regional exchange or market on which the Securities are then listed or quoted MP0 = the average of the Closing Sale Prices of Common Shares over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the NYSE Amex Equities The American Stock Exchange or such other national or regional exchange or market on which the Securities are then listed or quoted The adjustment to the Conversion Rate under the preceding paragraph will occur on the fourteenth Trading Day after the date on which "Ex-Dividend Trading" commences for such distribution on the NYSE Amex Equities The American Stock Exchange or such other national or regional exchange or market on which the Securities are then listed or quoted.
(d) If any cash dividend or other distribution is made to all or substantially all holders of Common Shares, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect on the Record Date for such distribution CR' = the Conversion Rate in effect immediately after the Record Date for such distribution SP0 = the Current Market Price of one of the Common Shares on the Record Date for such distribution C = the amount in cash per share the Company distributes to holders of Common Shares. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Record Date for such dividend or distribution; provided that if such dividend or distribution is not paid or made, the Conversion Rate shall again be adjusted to be 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 offer or exchange offer for Common Shares to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the Current Market Price per Common Share on the Trading Day immediately preceding the date such tender offer or exchange offer is announced, the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect on the date such tender or exchange offer expires CR' = the Conversion Rate in effect on the day next succeeding the date such tender or exchange offer expires AC = the fair market value (as determined by the Board of Directors) of the aggregate consideration paid or payable for shares purchased in such tender or exchange offer OS0 = the number of Common Shares outstanding on the Trading Day immediately preceding the date such tender or exchange offer is announced OS' = the number of Common Shares outstanding less any shares purchased in the tender or exchange offer at the time such tender or exchange offer expires SP' = the Current Market Price of Common Shares on the Trading Day immediately preceding after the date such tender or exchange offer is announcedexpires. If the Company is obligated to repurchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange had not been made.
(f) For purposes of this Section 13.411.04, the following terms shall have the meaning indicated:
Appears in 1 contract
Conversion Rate Adjustments. The Conversion Rate shall be adjusted from time to time by the Company as follows, except that the Company shall not make any adjustment if holders of Securities may participate, as a result of holding the Securities, in the transaction described without having to convert their Securities.
(a) If the Company, at any time or from time to time while any of the Securities are outstanding, pays a dividend or make a distribution in Common Shares to all holders of its outstanding Common Shares, or if the Company subdivides or combines its Common Shares then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such event CR' ’ = the Conversion Rate in effect immediately after such event OS0 = the number of Common Shares outstanding immediately prior to such event OS' ’ = the number of Common Shares outstanding immediately after such event Such adjustment shall become effective immediately after the opening of business on the day following the Record Date for such dividend or distribution, or the date fixed for determination for such share split or share combination. If any dividend or distribution of the type described in this Section 13.4(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) If the Company, at any time or from time to time while any of the Securities are outstanding, issues to all or substantially all holders of its outstanding Common Shares certain rights or warrants to purchase Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) at a price per share (or having a conversion, exchange or exercise price per share) less than the Closing Sale Price of Common Shares on the Record Date for shareholders entitled to receive such rights and warrants, which rights or warrants are exercisable for not more than 60 days, the Conversion Rate shall be adjusted based on the following formula (provided that the Conversion Rate shall be readjusted to the extent that such rights or warrants are not exercised prior to their expiration): where, CR0 = the Conversion Rate in effect immediately prior to such event CR' ’ = the Conversion Rate in effect immediately after such event OS0 = the number of Common Shares outstanding on the close of business on the next Business Day following such Record Date X = the total number of Common Shares issuable pursuant to such rights Y = the number of Common Shares equal to the aggregate offering price that the total number of shares so offered would purchase at such Closing Sale Price of Common Shares on the Record Date of such issuance determined by multiplying such total number of shares so offered by the exercise price of such rights or warrants and dividing the product so obtained by such Closing Sale Price. Such adjustment shall become effective immediately after the opening of business on the day following the date of announcement of such issuance. To the extent that Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered pursuant to such rights or warrants, upon the expiration or termination 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 the delivery of only the number of Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually delivered. In the event that 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 the date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase Common Shares at less than such Closing Sale Price, and in determining the aggregate offering price of such Common Shares, there shall be taken into account any consideration received for such rights or warrants and the value of such consideration, if other than cash, to be determined in good faith by the Board of Directors of the Company. For the purposes of this Section 13.4(b), rights or warrants distributed by the Company to all holders of its Common Shares entitling them to subscribe for or purchase shares of the Company's ’s capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("“Trigger Event"”): (1) are deemed to be transferred with such Common Shares; (2) are not exercisable; and (3) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 13.4(b) (and no adjustment to the Conversion Price under this Section 13.4(b) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.4(b)) . If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.4(b) was made, (1) in the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any Holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder of Common Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all applicable holders of Common Shares as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(c) If the Company, at any time or from time to time while the Securities are outstanding, distributes to all or substantially all holders of its Common Shares, Common Shares of the Company, evidences of its indebtedness or assets, including securities, but excluding:
(i) dividends or distributions referred to in Section 13.4(a);
(ii) rights or warrants referred to in Section 13.4(b); and
(iii) dividends or distributions referred to in Section 13.4(d); then the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such distribution CR' ’ = the Conversion Rate in effect immediately after such distribution SP0 = the Current Market Price of Common Shares on the Record Date for such distribution FMV = the fair market value (as determined by the Board of Directors of the Company) of the Common Shares, evidences of indebtedness, assets or property distributed with respect to each outstanding Common Share on the Record Date for such distribution Such adjustment shall become effective immediately prior to the opening of business on the day following the Record Date for such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 13.4(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive, in addition to the Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of conversion, in which case the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Shares, Common Shares, evidences of indebtedness or assets, subject to readjustment in the event of the expiration, termination or redemption of such rights. With respect to an adjustment pursuant to this Section 13.4(c) where there has been a payment of a dividend or other distribution on the Common Shares or common shares 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 effective date fixed for determination of shareholders entitled to receive the distribution shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such distribution CR' ’ = the Conversion Rate in effect immediately after such distribution FMV0 = the average of the Closing Sale Prices of the Common Shares or similar equity interest distributed to holders of Common Shares applicable to one common share over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted MP0 = the average of the Closing Sale Prices of Common Shares over the ten 10 consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the The NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted The adjustment to the Conversion Rate under the preceding paragraph will occur on the fourteenth Trading Day after the date on which "“Ex-Dividend Trading" ” commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted.
(d) If any cash dividend or other distribution is made to all or substantially all holders of Common Shares, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect on the Record Date for such distribution CR' ’ = the Conversion Rate in effect immediately after the Record Date for such distribution SP0 = the Current Market Price of one of the Common Shares on the Record Date for such distribution C = the amount in cash per share the Company distributes to holders of Common Shares. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Record Date for such dividend or distribution; provided that if such dividend or distribution is not paid or made, the Conversion Rate shall again be adjusted to be 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 offer or exchange offer for Common Shares to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the Current Market Price per Common Share on the Trading Day immediately preceding the date such tender offer or exchange offer is announced, the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect on the date such tender or exchange offer expires CR' ’ = the Conversion Rate in effect on the day next succeeding the date such tender or exchange offer expires AC = the fair market value (as determined by the Board of Directors) of the aggregate consideration paid or payable for shares purchased in such tender or exchange offer OS0 = the number of Common Shares outstanding on the Trading Day immediately preceding the date such tender or exchange offer is announced OS' ’ = the number of Common Shares outstanding less any shares purchased in the tender or exchange offer at the time such tender or exchange offer expires SP' ’ = the Current Market Price of Common Shares on the Trading Day immediately preceding the date such tender or exchange offer is announced. If the Company is obligated to repurchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange had not been made.
(f) For purposes of this Section 13.4, the following terms shall have the meaning indicated:
Appears in 1 contract
Samples: Indenture (Endeavour Silver Corp)
Conversion Rate Adjustments. The Conversion Rate shall be adjusted from time to time by the Company as follows, except that the Company shall not make any adjustment if holders of Securities may participate, as a result of holding the Securities, in the transaction described without having to convert their Securities.:
(a) If the Company, at any time or from time to time while any of the Securities are outstanding, pays Company issues Company Common Shares as a dividend or make a distribution in on Company Common Shares to all holders of its outstanding Company Common Shares, or if the Company subdivides effects a share split or combines its Common Shares then share combination, the Conversion Rate will shall be adjusted based on the following formula: where, CR1 = CR0 x (OS1/OS0) where CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event CR' CR1 = the new Conversion Rate in effect immediately after taking such event into account OS0 = the number of Company Common Shares outstanding immediately prior to such event OS' OS1 = the number of Company Common Shares outstanding immediately after such event Such event. Any adjustment made pursuant to this paragraph (a) shall become effective on the date that is immediately after the opening of business on the day following the Record Date for such dividend or distribution, or (x) the date fixed for the determination for of shareholders entitled to receive such share dividend or other distribution or (y) the date on which such split or share combinationcombination becomes effective, as applicable. If any dividend or distribution of the type described in this Section 13.4(aparagraph (a) is declared but not so paid or made, the new Conversion Rate shall again be adjusted readjusted to the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company, at any time or from time to time while any of the Securities are outstanding, Company issues to all holders of Company Common Shares any rights, warrants, options or substantially other securities entitling them for a period of not more than 45 days after the date of issuance thereof to subscribe for or purchase Company Common Shares, or issues to all holders of its outstanding Company Common Shares certain rights or warrants to purchase Common Shares (or securities convertible into or exchangeable or exercisable Company Common Shares for Common Shares) a period of not more than 45 days after the date of issuance thereof, in either case at a price per share (or having a conversion, exchange or an exercise price per share) Company Common Share or a conversion price per Company Common Share less than the Closing Sale Price of Company Common Shares on the Record Date for shareholders entitled to receive Business Day immediately preceding the time of announcement of such rights and warrants, which rights or warrants are exercisable for not more than 60 daysissuance, the Conversion Rate shall be adjusted based on the following formula formula: CR1 = CR0 x (provided that the Conversion Rate shall be readjusted to the extent that such rights or warrants are not exercised prior to their expiration): where, (OS0+X)/(OS0+Y)) where CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event CR' CR1 = the new Conversion Rate in effect immediately after taking such event into account OS0 = the number of Company Common Shares outstanding on the close of business on the next Business Day following immediately prior to such Record Date event X = the total number of Company Common Shares issuable pursuant to such rights rights, warrants, options, other securities or convertible securities Y = the number of Company Common Shares equal to the quotient of (A) the aggregate offering price that payable to exercise such rights, warrants, options, other securities or convertible securities and (B) the total number average of shares so offered would purchase at such the Closing Sale Price Prices of Company Common Shares on for the Record Date of such issuance determined by multiplying such total number of shares so offered by 10 consecutive Trading Days prior to the exercise price of such rights or warrants and dividing the product so obtained by such Closing Sale Price. Such adjustment shall become effective Business Day immediately after the opening of business on the day following preceding the date of announcement for the issuance of such issuance. To the extent that Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered pursuant to such rights or rights, warrants, upon options, other securities or convertible securities. If the expiration or termination application of such rights or warrantsthe foregoing formula would result in a decrease in the Conversion Rate, no adjustment to the Conversion Rate shall be readjusted to the Conversion Rate which would then be made. For purposes of this paragraph (b), in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually delivered. In the event that 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 the date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights rights, warrants, options, other securities or warrants convertible securities entitle the holders to subscribe for or purchase purchase, or exercise a conversion right for, Company Common Shares at less than such the applicable Closing Sale PricePrice of Company Common Shares, and in determining the aggregate offering exercise or conversion price of payable for such Company Common Shares, there shall be taken into account any consideration received by the Company for such rights rights, warrants, options, other securities or warrants convertible securities 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 Trustees of the Company. For the purposes of this Section 13.4(b), rights or warrants distributed by the Company to all holders of its Common Shares entitling them to subscribe for or purchase shares of the Company's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (1) are deemed to be transferred with such Common Shares; (2) are not exercisable; and (3) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 13.4(b) (and no adjustment to the Conversion Price under this Section 13.4(b) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.4(b). If any such right or right, warrant, including any such existing rights option, other security or warrants distributed convertible security described in this paragraph (b) is not exercised or converted prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights exercisability or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.4(b) was made, (1) in the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any Holders convertibility thereof, the new Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder of Common Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all applicable holders of Common Shares as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall that would then be readjusted as in effect if such rights and warrants right, warrant, option, other security or convertible security had not been so issued.
(c) If the CompanyCompany distributes shares of capital stock, at any time evidences of indebtedness or from time other assets or property of the Company to time while the Securities are outstanding, distributes to all or substantially all holders of its Company Common Shares, Common Shares of the Company, evidences of its indebtedness or assets, including securities, but excluding:
(i) dividends dividends, distributions, rights, warrants, options, other securities or distributions convertible securities referred to in Section 13.4(a);paragraph (a) or (b) above,
(ii) rights dividends or warrants referred to distributions paid exclusively in Section 13.4(b); cash, and
(iii) dividends or distributions referred to Spin-Offs described below in Section 13.4(dthis paragraph (c); , then the Conversion Rate shall be adjusted based on the following formula: where, CR1 = CR0 x (SP0/(SP0-FMV)) where CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such distribution CR' event CR1 = the new Conversion Rate in effect immediately after taking such distribution event into account SP0 = the Current Market Price average of the Closing Sale Prices of Company Common Shares on for the Record Date 10 consecutive Trading Days prior to the Business Day immediately preceding the earlier of the record date or the ex-dividend date for such distribution FMV = the fair market value (as determined in good faith by the Board of Directors Trustees of the Company) of the Common Sharesshares of capital stock, evidences of indebtedness, assets or property distributed with respect to each outstanding Company Common Share on the Record Date earlier of the record date or the ex-dividend date for such distribution. An adjustment to the Conversion Rate made pursuant to the immediately preceding paragraph shall be made successively whenever any such distribution Such adjustment is made and shall become effective immediately prior to the opening of business on the day following immediately after the Record Date date fixed for the determination of holders of Company Common Shares entitled to receive such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 13.4(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive, in addition to the Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of conversion, in which case the Conversion Rate will be adjusted as if the Company distributed distributes to all holders of Company Common Shares, Common Shares, evidences of indebtedness or assets, subject to readjustment in the event of the expiration, termination or redemption of such rights. With respect to an adjustment pursuant to this Section 13.4(c) where there has been a payment of a dividend or other distribution on the Common Shares or common shares capital stock of any class or series, or similar equity interest, of or relating to a Subsidiary 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, on the effective date fixed for determination of shareholders entitled to receive the distribution shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such distribution CR' = the Conversion Rate in effect immediately after such distribution FMV0 = the average of the Closing Sale Prices of the Common Shares or similar equity interest distributed to holders of Common Shares applicable to one common share over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted MP0 = the average of the Closing Sale Prices of Common Shares over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted The adjustment to the Conversion Rate under the preceding paragraph will occur on the fourteenth Trading Day after the date on which "Ex-Dividend Trading" commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted.
(d) If any cash dividend or other distribution is made to all or substantially all holders of Common Shares, the Conversion Rate shall be adjusted based on the following formula: where, CR1 = CR0 x ((FMV0+MP0)/MP0) where CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event CR1 = the new Conversion Rate taking such event into account FMV0 = the value, based on the Record Date for such distribution CR' average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Company Common Shares over the first 10 consecutive Trading Days after the effective date of the Spin-Off applicable to one Company Common Share MP0 = the average of the Closing Sale Prices of Company Common Shares over the first 10 consecutive Trading Days after the effective date of the Spin-Off. An adjustment to the Conversion Rate in effect made pursuant to the immediately preceding paragraph shall occur on the 10th Trading Day after the Record Date for such distribution SP0 = the Current Market Price of one effective date of the Common Shares on the Record Date for such distribution C = the amount in cash per share the Company distributes to holders of Common SharesSpin-Off. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Record Date for such dividend or distribution; provided that if If any such dividend or distribution described in this paragraph (c) is declared but not paid or made, the new Conversion Rate shall again be adjusted readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(d) If the Company makes any cash dividend or distribution during any of its quarterly fiscal periods (without regard to when paid) to all holders of Company Common Shares in an aggregate amount that, together with other cash dividends or distributions made in respect of that quarterly fiscal period, exceeds the product of $0.20 (the “Reference Dividend”) multiplied by the number of Company Common Shares outstanding on the record date for such distribution, the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 x ((SP0-RD)/(SP0-C)) where CR0 = the Conversion Rate in effect immediately prior to the adjustment relating to such event CR1 = the new Conversion Rate taking such event into account SP0 = the average of the Closing Sale Prices of Company Common Shares for the 10 consecutive Trading Days prior to the business day immediately preceding the earlier of the record date or the day prior to the ex-dividend date for such distribution RD= the Reference Dividend C = the amount in cash per Company Common Share that the Company distributes to holders of Company Common Shares in respect of such quarterly fiscal period. An adjustment to the Conversion Rate made pursuant to this paragraph (d) shall become effective on the date immediately after the date fixed for the determination of holders of Company Common Shares entitled to receive such dividend or distribution. If any dividend or distribution described in this paragraph (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. Notwithstanding the foregoing, if an adjustment to the Conversion Rate is required to be made as a result of a dividend or distribution that is not a quarterly dividend or distribution either in whole or in part, the Reference Dividend shall be deemed to be zero for purposes of determining the adjustment to the Conversion Rate as a result of such dividend or distribution. The Reference Dividend shall be subject to adjustment in a manner that is inversely proportional to adjustments to the Conversion Rate; provided that no adjustment shall be made to the Reference Dividend for any adjustment made to the Conversion Rate pursuant to this paragraph (d).
(e) If the Company or any of its Subsidiaries subsidiaries makes a payment in respect of a tender offer or exchange offer for Company Common Shares to the extent that the cash and value of any other consideration included in the payment per Company Common Share exceeds the Current Market Closing Sale Price per of a Company Common Share on the Trading Day immediately preceding next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer is announced(the “Expiration Time”), the Conversion Rate shall be increased adjusted based on the following formula: where, CR1 = CR0 x ((AC + (SP1 x OS1))/(SP1 x OS0)) where CR0 = the Conversion Rate in effect on immediately prior to the date adjustment relating to such tender or exchange offer expires CR' event CR1 = the new Conversion Rate in effect on the day next succeeding the date taking such tender or exchange offer expires event into account AC = the fair market aggregate value of all cash and any other consideration (as determined in good faith by the Board of Directors) Trustees of the aggregate consideration Company) paid or payable for shares Company Common Shares purchased in such tender or exchange offer OS0 = the number of Company Common Shares outstanding on the Trading Day immediately preceding prior to the date such tender or exchange offer is announced OS' expires OS1 = the number of Company Common Shares outstanding less any shares purchased in the tender or exchange offer at the time immediately after such tender or exchange offer expires SP' (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer) SP1 = the Current Market Price average of the Closing Sale Prices of Company Common Shares for the 10 consecutive Trading Days commencing on the Trading Day immediately preceding next succeeding the date such tender or exchange offer is announcedexpires. If the application of the foregoing formula would result in a decrease in the Conversion Rate, no adjustment to the Conversion Rate shall be made. Any adjustment to the Conversion Rate made pursuant to this paragraph (e) shall become effective on the date immediately following the Expiration Time. If the Company or one of its subsidiaries is obligated to repurchase shares purchase Company Common Shares pursuant to any such tender or exchange offer, offer but the Company is permanently prevented by applicable law from effecting any such purchases purchase or all such purchases are rescinded, the new Conversion Rate shall again be adjusted readjusted to be the Conversion Rate that would then be in effect if such tender or exchange offer had not been made.
(f) For purposes Notwithstanding the foregoing, in the event of an adjustment to the Conversion Rate pursuant to paragraph (d) or (e) above, in no event shall the Conversion Rate exceed 38.8802, subject to adjustment pursuant to paragraphs (a), (b) and (c) above.
(g) If the Company has in effect a rights plan while any Notes remain Outstanding, Holders of Notes shall receive, upon a conversion of Notes in respect of which the Company has elected to deliver Net Shares, in addition to such Net Shares, rights under any shareholder rights agreement the Company may then have in effect unless, prior to conversion, the rights have expired, terminated or been redeemed or unless the rights have separated from the Company Common Shares. If the rights provided for in the rights plan adopted by the Company have separated from the Company Common Shares in accordance with the provisions of the applicable shareholder rights agreement so that Holders of Notes would not be entitled to receive any rights in respect of Company Common Shares into which Notes are convertible, the Conversion Rate shall be adjusted at the time of separation as if the Company had distributed to all holders of Company Common Shares capital stock, evidences of indebtedness or other assets or property pursuant to paragraph (c) above, subject to readjustment upon the subsequent expiration, termination or redemption of the rights. In addition to the adjustments pursuant to paragraphs (a) through (e) above, the Company may increase the Conversion Rate in order to avoid or diminish any income tax to holders of Company Common Shares resulting from any dividend or distribution of capital stock (or rights to acquire Company Common Shares) or from any event treated as such for income tax purposes. The Company may also, from time to time, to the extent permitted by applicable law, increase the Conversion Rate by any amount for any period if the Company has determined that such increase would be in the best interests of the Company. If the Company makes such determination, it shall be conclusive and the Company shall mail to Holders of the Notes a notice of the increased Conversion Rate and the period during which it shall be in effect at least fifteen (15) days prior to the date the increased Conversion Rate takes effect in accordance with applicable law. If, in connection with any adjustment to the Conversion Rate as set forth in this Section 13.42.14, a Holder shall be deemed for U.S. federal tax purposes to have received a distribution or other income from the Company, the following terms shall have Company may set off any withholding tax it or the meaning indicated:Company reasonably believes it is required to collect with respect to any such deemed distribution or payment against cash payments of interest in accordance with the provisions of Section 2.05 hereof or from cash and Company Common Shares, if any, otherwise deliverable to
Appears in 1 contract
Conversion Rate Adjustments. The Conversion Rate shall be adjusted from time to time by the Company as follows, except that the Company shall not make any adjustment to the Conversion Rate if holders of Securities Holders may participate, as a result of holding the Securities, in the transaction described below without having to convert their Securities.
(a) If the Company, at any time or from time to time while any of the Securities are outstanding, pays a dividend or make makes a distribution in Common Shares to all holders of its outstanding Common Shares, or if the Company subdivides or combines its Common Shares Shares, 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 of such event dividend or distribution or the effective date of such subdivision or combination, as applicable CR' = the Conversion Rate in effect immediately after such event Ex-Dividend Date or effective date, as applicable OS0 = the number of Common Shares outstanding immediately prior to such event Ex-Dividend Date or effective date, as applicable OS' = the number of Common Shares outstanding immediately prior to such Ex-Dividend Date or effective date, as applicable, after giving pro forma effect to such event dividend, distribution, subdivision or combination Such adjustment shall become effective immediately after the opening of business 9:00 a.m., New York City time, on the day Business Day following the Record Date for such dividend or distribution, or the date fixed for determination for such share split Common Share subdivision or share combination. If any dividend or distribution of the type described in this Section 13.4(a13.04(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) If the Company, at any time or from time to time while any of the Securities are outstanding, issues distributes to holders of all or substantially all holders of its outstanding Common Shares certain rights or warrants to purchase Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) at a price per share (or having a conversion, exchange or exercise price per share) Common Share less than the Closing Sale Price of the Common Shares on the Record Date for shareholders entitled to receive such rights and warrants, which rights or warrants are exercisable for not more than 60 days, the Conversion Rate shall be adjusted based on the following formula (provided that the Conversion Rate shall be readjusted to the extent that such rights or warrants are not exercised prior to their expiration): where, CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date of such event distribution CR' = the Conversion Rate in effect immediately after such event Ex-Dividend Date OS0 = the number of Common Shares outstanding on at the close open of business on the next Business Day following such Record Ex-Dividend Date X = the total number of Common Shares issuable pursuant to such rights or warrants Y = the number of Common Shares equal to the quotient of (a) the aggregate offering price that payable to exercise all such rights or warrants and (b) the total number average of shares so offered would purchase at such the Closing Sale Price of the Common Shares for the 10 consecutive Trading Days ending on the Record Date Trading Day immediately preceding the date of such announcement for the issuance determined by multiplying such total number of shares so offered by the exercise price of such rights or warrants and dividing the product so obtained by such Closing Sale Price. Such adjustment shall become effective immediately after the opening of business 9:00 a.m., New York City time, on the day Business Day following the date of announcement of the issuance of such issuancerights or warrants. To the extent that Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered pursuant to such rights or warrants, upon the expiration or termination 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 the delivery of only the number of Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually delivered. In the event that 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 the date fixed for the determination of stockholders shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase Common Shares at less than such Closing Sale Price, and in determining the aggregate offering price of such Common Shares, there shall be taken into account any consideration received for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined in good faith by the Board of Directors of the Company. For the purposes of this Section 13.4(b13.04(c), rights or warrants distributed by the Company to all holders of its the Common Shares entitling them to subscribe for or purchase shares of the Company's capital stock Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (1i) are deemed to be transferred with such Common Shares; (2ii) are not exercisable; and (3iii) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 13.4(b13.04(c) (and no adjustment to the Conversion Price under this Section 13.4(b13.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.4(b13.04(c). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.4(b13.04(c) was made, (1A) in the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any Holders holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder of Common Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all applicable holders of Common Shares as of the date of such redemption or repurchase, and (2B) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(c) If the Company, at any time or from time to time while the Securities are outstanding, distributes to holders of all or substantially all holders of its the Common Shares, Common Shares of the CompanyShares, evidences of its indebtedness or assetsassets or property, including securities, but excluding:
(i) dividends or distributions referred to in Section 13.4(a13.04(a);
(ii) rights or warrants referred to in Section 13.4(b13.04(c); and
(iii) dividends or distributions referred to paid exclusively in Section 13.4(d)cash; then the Conversion Rate shall 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 Conversion Rate in effect immediately after such distribution Ex-Dividend Date SP0 = the Current Market Price of the Common Shares on the Record Trading Day immediately preceding such Ex-Dividend Date for such distribution FMV = the fair market value (as determined by the Board of Directors of the Company) of the Common Shares, evidences of indebtedness, assets or property distributed with respect to each outstanding Common Share on the Record Date for such distribution Such adjustment shall become effective immediately prior to the opening of business 9:00 a.m., New York City time, on the day Business Day following the Record Date for such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 13.4(c13.04(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive, in addition to the Common Shares, receive the rights under the rights plan attached to the Common Shares unless the such rights are in respect of Ineligible Consideration or such rights have separated from the Common Shares at the time of conversion, in which case the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Shares, Common Shares, evidences of indebtedness or assetsassets or property as described in this Section 13.04(c), subject to readjustment in the event of the expiration, termination or redemption of such rights. For greater certainty, any rights under the rights plan received by a Holder on conversion of the Securities will be received by the Holder by reason of the Holder becoming an owner of Common Shares and not as consideration for the conversion of the Securities. With respect to an adjustment pursuant to this Section 13.4(c13.04(c) where there has been a payment of a dividend or other distribution on the Common Shares or common shares 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 effective date fixed for determination of shareholders entitled to receive the distribution Spin-Off shall be increased based on the following formulaformula in lieu of the formula above: where, CR0 = the Conversion Rate in effect immediately prior to such distribution 5:00 p.m., New York City time, on the effective date of the Spin-Off CR' = the Conversion Rate in effect immediately after such distribution the effective date of the Spin-Off FMV0 = the average of the Closing Sale Prices of the Common Shares or similar equity interest distributed to holders of Common Shares applicable to one common share Common Share over the ten 10 consecutive Trading-Day period commencing on on, and including including, the fifth Trading Day after effective date of the date on which ExSpin-Dividend Trading commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted Off MP0 = the average of the Closing Sale Prices of the Common Shares over the ten 10 consecutive Trading-Day period commencing on on, and including including, the fifth Trading Day after effective date of the date on which ExSpin-Dividend Trading commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted Off The adjustment to the Conversion Rate under the preceding paragraph will occur on the fourteenth 10th Trading Day after from, and including, the effective date of the Spin-Off and shall be applied on which "Exa retroactive basis from, and including, the effective date of the Spin-Dividend Trading" commences for such distribution on Off; provided that in respect of any conversion occurring prior to the NYSE Amex Equities or such other national or regional exchange or market on effective date of the Spin-Off with respect to which the Securities are then listed or quotedsettlement date would occur during the 10 Trading Days from, and including, the effective date of any Spin-Off, references with respect to the Spin-Off to the 10 consecutive Trading-Day period shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the settlement date in determining the applicable Conversion Rate; provided, further, that in respect of any conversion occurring prior the effective date of the Spin-Off with respect to which the settlement date would occur during the three Trading Days from, and including, the effective date of such Spin-Off, references to the 10 consecutive Trading-Day period shall be deemed replaced with a three consecutive Trading-Day period with such adjustment to the Conversion Rate being applied on a retroactive basis from, and including, the effective date of the Spin-Off.
(d) If any cash dividend or other distribution is made paid to all or substantially all holders of Common Shares, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect on immediately prior to the Record Ex-Dividend Date for such dividend or distribution CR' = the Conversion Rate in effect immediately after the Record such Ex-Dividend Date for such distribution SP0 = the Current Market Price of one of the Common Shares on the Record Trading Day immediately preceding such Ex-Dividend Date for such distribution C = the amount in cash per share the Company distributes to holders of Common Shares. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Record Date for such dividend or distribution; provided that if such dividend or distribution is not paid or made, the Conversion Rate shall again be adjusted to be 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 offer or exchange offer (as such terms are defined under applicable U.S. securities laws) for the Common Shares Shares, to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the Current Market Closing Sale Price per of the Common Share Shares on the Trading Day immediately preceding next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer is announcedoffer, the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect on immediately prior to the effective date such tender or exchange offer expires of the adjustment CR' = the Conversion Rate in effect on immediately after the day next succeeding effective date of the date such tender or exchange offer expires adjustment AC = the fair market value (as determined by the Board of Directors) of the aggregate consideration paid or payable for shares purchased accepted for purchase or exchange in such tender or exchange offer OS0 = the number of Common Shares outstanding on the Trading Day immediately preceding the date such tender or exchange offer is announced expires (prior to giving effect to such tender or exchange offer) OS' = the number of Common Shares outstanding less any shares purchased Common Shares accepted for purchase or exchange in the tender or exchange offer at the time such tender or exchange offer expires SP' = the Current Market Price of the Common Shares on the Trading Day immediately preceding next succeeding the date such tender or exchange offer is announcedexpires The adjustment to the Conversion Rate under this Section 13.04(e) shall occur on the 10th Trading Day from, and including, the Trading Day next succeeding the date such tender or exchange offer expires and shall be applied on a retroactive basis from, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that in respect of any conversion occurring prior to the date such tender or exchange offer expires with respect to which the settlement date would occur during the 10 Trading Days from, and including, the Trading Day next succeeding the date such tender or exchange offer expires, references with respect to the tender or exchange offer to the 10 consecutive Trading-Day period shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Trading Day next succeeding the date such tender or exchange offer expires and the settlement date in determining the applicable Conversion Rate. If the Company is obligated to repurchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange had not been made.
(f) For purposes of this Section 13.413.04, the following terms shall have the meaning indicated:
Appears in 1 contract
Samples: Indenture (Jaguar Mining Inc)
Conversion Rate Adjustments. The Conversion Rate shall be adjusted from time to time by the Company as follows, except that the Company shall not make any adjustment if holders of Securities may participate, as a result of holding the Securities, in the transaction described without having to convert their Securities.
(a) If the Company, at any time or from time to time while any of the Securities are outstanding, pays a dividend or make a distribution in Common Shares to all holders of its outstanding Common Shares, or if the Company subdivides or combines its Common Shares then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such event CR' ’ = the Conversion Rate in effect immediately after such event OS0 = the number of Common Shares outstanding immediately prior to such event OS' ’ = the number of Common Shares outstanding immediately after such event Such adjustment shall become effective immediately after the opening of business on the day following the Record Date for such dividend or distribution, or the date fixed for determination for such share split or share combination. If any dividend or distribution of the type described in this Section 13.4(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) If the Company, at any time or from time to time while any of the Securities are outstanding, issues to all or substantially all holders of its outstanding Common Shares certain rights or warrants to purchase Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) at a price per share (or having a conversion, exchange or exercise price per share) less than the Closing Sale Price of Common Shares on the Record Date for shareholders entitled to receive such rights and warrants, which rights or warrants are exercisable for not more than 60 days, the Conversion Rate shall be adjusted based on the following formula (provided that the Conversion Rate shall be readjusted to the extent that such rights or warrants are not exercised prior to their expiration): where, CR0 = the Conversion Rate in effect immediately prior to such event CR' ’ = the Conversion Rate in effect immediately after such event OS0 = the number of Common Shares outstanding on the close of business on the next Business Day following such Record Date X = the total number of Common Shares issuable pursuant to such rights Y = the number of Common Shares equal to the aggregate offering price that the total number of shares so offered would purchase at such Closing Sale Price of Common Shares on the Record Date of such issuance determined by multiplying such total number of shares so offered by the exercise price of such rights or warrants and dividing the product so obtained by such Closing Sale Price. Such adjustment shall become effective immediately after the opening of business on the day following the date of announcement of such issuance. To the extent that Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered pursuant to such rights or warrants, upon the expiration or termination 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 the delivery of only the number of Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually delivered. In the event that 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 the date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase Common Shares at less than such Closing Sale Price, and in determining the aggregate offering price of such Common Shares, there shall be taken into account any consideration received for such rights or warrants and the value of such consideration, if other than cash, to be determined in good faith by the Board of Directors of the Company. For the purposes of this Section 13.4(b), rights or warrants distributed by the Company to all holders of its Common Shares entitling them to subscribe for or purchase shares of the Company's ’s capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("“Trigger Event"”): (1) are deemed to be transferred with such Common Shares; (2) are not exercisable; and (3) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 13.4(b) (and no adjustment to the Conversion Price under this Section 13.4(b) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.4(b). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.4(b) was made, (1) in the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any Holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder of Common Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all applicable holders of Common Shares as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(c) If the Company, at any time or from time to time while the Securities are outstanding, distributes to all or substantially all holders of its Common Shares, Common Shares of the Company, evidences of its indebtedness or assets, including securities, but excluding:
(i) dividends or distributions referred to in Section 13.4(a);
(ii) rights or warrants referred to in Section 13.4(b); and
(iii) dividends or distributions referred to in Section 13.4(d); then the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such distribution CR' ’ = the Conversion Rate in effect immediately after such distribution SP0 = the Current Market Price of Common Shares on the Record Date for such distribution FMV = the fair market value (as determined by the Board of Directors of the Company) of the Common Shares, evidences of indebtedness, assets or property distributed with respect to each outstanding Common Share on the Record Date for such distribution Such adjustment shall become effective immediately prior to the opening of business on the day following the Record Date for such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 13.4(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive, in addition to the Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of conversion, in which case the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Shares, Common Shares, evidences of indebtedness or assets, subject to readjustment in the event of the expiration, termination or redemption of such rights. With respect to an adjustment pursuant to this Section 13.4(c) where there has been a payment of a dividend or other distribution on the Common Shares or common shares 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 effective date fixed for determination of shareholders entitled to receive the distribution shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such distribution CR' ’ = the Conversion Rate in effect immediately after such distribution FMV0 = the average of the Closing Sale Prices of the Common Shares or similar equity interest distributed to holders of Common Shares applicable to one common share over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the NYSE Amex Equities MKT or such other national or regional exchange or market on which the Securities are then listed or quoted MP0 = the average of the Closing Sale Prices of Common Shares over the ten 10 consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the The NYSE Amex Equities MKT or such other national or regional exchange or market on which the Securities are then listed or quoted The adjustment to the Conversion Rate under the preceding paragraph will occur on the fourteenth Trading Day after the date on which "“Ex-Dividend Trading" ” commences for such distribution on the NYSE Amex Equities MKT or such other national or regional exchange or market on which the Securities are then listed or quoted.
(d) If any cash dividend or other distribution is made to all or substantially all holders of Common Shares, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect on the Record Date for such distribution CR' ’ = the Conversion Rate in effect immediately after the Record Date for such distribution SP0 = the Current Market Price of one of the Common Shares on the Record Date for such distribution C = the amount in cash per share the Company distributes to holders of Common Shares. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Record Date for such dividend or distribution; provided that if such dividend or distribution is not paid or made, the Conversion Rate shall again be adjusted to be 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 offer or exchange offer for Common Shares to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the Current Market Price per Common Share on the Trading Day immediately preceding the date such tender offer or exchange offer is announced, the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect on the date such tender or exchange offer expires CR' ’ = the Conversion Rate in effect on the day next succeeding the date such tender or exchange offer expires AC = the fair market value (as determined by the Board of Directors) of the aggregate consideration paid or payable for shares purchased in such tender or exchange offer OS0 = the number of Common Shares outstanding on the Trading Day immediately preceding the date such tender or exchange offer is announced OS' ’ = the number of Common Shares outstanding less any shares purchased in the tender or exchange offer at the time such tender or exchange offer expires SP' ’ = the Current Market Price of Common Shares on the Trading Day immediately preceding the date such tender or exchange offer is announced. If the Company is obligated to repurchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange had not been made.
(f) For purposes of this Section 13.4, the following terms shall have the meaning indicated:
Appears in 1 contract
Samples: Indenture (Endeavour Silver Corp)
Conversion Rate Adjustments. The Each Fixed Conversion Rate shall be adjusted from time to time by the Company as followsprovided below, except that no adjustment shall be made to the Company shall not make any adjustment Fixed Conversion Rates if holders Holders of Securities may the Bonds participate, as a result of holding the SecuritiesBonds, in any of the transaction transactions described in Section 3.1(a) (but only with respect to an issue by the Guarantor of ordinary shares either as a dividend or as a distribution on its ordinary shares), Section 3.1(b), Section 3.1(c) and Section 3.1(d) below at the same time as holders of ordinary shares of the Guarantor without having to convert their Securities.Bonds as if they held a number of ADSs equal to the Maximum Conversion Rate in effect prior to the relevant ex-dividend date or effective date:
(a) If the Company, at any time or from time to time while any of the Securities are outstanding, pays Guarantor issues ordinary shares as a dividend or make a distribution in Common Shares to all holders of on its outstanding Common Sharesordinary shares, or if the Company subdivides Guarantor effects a share split or combines its Common Shares then the share combination, each Fixed Conversion Rate will be adjusted based on the following formula: where, CR0 = the Fixed Conversion Rate in effect immediately prior to the open of business on the ex-dividend date of such event CR' dividend or distribution, or immediately prior to the open of business on the effective date of such share split or combination, as applicable; CR1 = the Fixed Conversion Rate in effect immediately after the open of business on such event ex-dividend date or effective date; OS0 = the number of Common Shares the Guarantor’s ordinary shares outstanding immediately prior to the open of business on such event OS' ex-dividend date or such effective date; OS1 = the number of Common Shares the Guarantor’s ordinary shares outstanding immediately after giving effect to such event Such dividend, distribution, share split or share combination; ADS0 = the number of ordinary shares of the Guarantor represented by an ADS immediately prior to the open of business on the ex-dividend date of such dividend or distribution, or immediately prior to the open of business on the effective date of such share split or combination, as applicable; and ADS1 = the number of ordinary shares of the Guarantor represented by an ADS immediately after giving effect to such dividend, distribution, share split or share combination. Any adjustment made under this Section 3.1(a) shall become effective immediately after the opening open of business on the day following the Record Date ex-dividend date for such dividend or distribution, or immediately after the open of business on the effective date fixed for determination for such share split or share combination, as applicable. If any dividend or distribution of the type described in this Section 13.4(a3.1(a) is declared but not so paid or made, the each Fixed Conversion Rate shall again be adjusted immediately readjusted, effective as of the date the Guarantor’s Board of Directors determines not to pay such dividend or distribution, to the applicable Fixed Conversion Rate which that would then be in effect if such dividend or distribution had not been declared.
(b) If the Company, at any time or from time to time while any of the Securities are outstanding, Guarantor issues to all or substantially all holders of its outstanding Common Shares certain rights ordinary shares any rights, options or warrants entitling them for a period of not more than 60 calendar days after the announcement date of such issuance to subscribe for or purchase Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) ordinary shares of the Guarantor at a price per share (or having a conversion, exchange or exercise price per share) less than the Closing Sale Price of Common Shares on the Record Date for shareholders entitled to receive such rights and warrants, which rights or warrants are exercisable for not more than 60 days, the Conversion Rate shall be adjusted based on the following formula (provided that the Conversion Rate shall be readjusted to the extent that such rights or warrants are not exercised prior to their expiration): where, CR0 = the Conversion Rate in effect immediately prior to such event CR' = the Conversion Rate in effect immediately after such event OS0 = the number of Common Shares outstanding on the close of business on the next Business Day following such Record Date X = the total number of Common Shares issuable pursuant to such rights Y = the number of Common Shares equal to the aggregate offering price that the total number of shares so offered would purchase at such Closing Sale Price of Common Shares on the Record Date of such issuance determined by multiplying such total number of shares so offered by the exercise current market price of such rights or warrants and dividing the product so obtained by such Closing Sale Price. Such adjustment shall become effective immediately after the opening of business Guarantor’s ordinary shares on the day following the date of announcement of such issuance. To the extent that Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered pursuant to such rights or warrants, upon the expiration or termination 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 the delivery of only the number of Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually delivered. In the event that 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 the date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase Common Shares at less than such Closing Sale Price, and in determining the aggregate offering price of such Common Shares, there shall be taken into account any consideration received for such rights or warrants and the value of such consideration, if other than cash, to be determined in good faith by the Board of Directors of the Company. For the purposes of this Section 13.4(b), rights or warrants distributed by the Company to all holders of its Common Shares entitling them to subscribe for or purchase shares of the Company's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (1) are deemed to be transferred with such Common Shares; (2) are not exercisable; and (3) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 13.4(b) (and no adjustment to the Conversion Price under this Section 13.4(b) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.4(b). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration first public announcement of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.4(b) was made, (1) in the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any Holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder of Common Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all applicable holders of Common Shares as of the date terms of such redemption or repurchaseissuance, and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(c) If the Company, at any time or from time to time while the Securities are outstanding, distributes to all or substantially all holders of its Common Shares, Common Shares of the Company, evidences of its indebtedness or assets, including securities, but excluding:
(i) dividends or distributions referred to in Section 13.4(a);
(ii) rights or warrants referred to in Section 13.4(b); and
(iii) dividends or distributions referred to in Section 13.4(d); then the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such distribution CR' = the Conversion Rate in effect immediately after such distribution SP0 = the Current Market Price of Common Shares on the Record Date for such distribution FMV = the fair market value (as determined by the Board of Directors of the Company) of the Common Shares, evidences of indebtedness, assets or property distributed with respect to each outstanding Common Share on the Record Date for such distribution Such adjustment shall become effective immediately prior to the opening of business on the day following the Record Date for such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 13.4(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive, in addition to the Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of conversion, in which case the Fixed Conversion Rate will be adjusted as if the Company distributed to all holders of Common Shares, Common Shares, evidences of indebtedness or assets, subject to readjustment in the event of the expiration, termination or redemption of such rights. With respect to an adjustment pursuant to this Section 13.4(c) where there has been a payment of a dividend or other distribution on the Common Shares or common shares 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 effective date fixed for determination of shareholders entitled to receive the distribution shall be increased based on the following formula: where, CR0 = the Fixed Conversion Rate in effect immediately prior to the open of business on the ex-dividend date for such distribution CR' issuance; CR1 = the Conversion Rate in effect immediately after such distribution FMV0 = the average of the Closing Sale Prices of the Common Shares or similar equity interest distributed to holders of Common Shares applicable to one common share over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted MP0 = the average of the Closing Sale Prices of Common Shares over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted The adjustment to the Conversion Rate under the preceding paragraph will occur on the fourteenth Trading Day after the date on which "Ex-Dividend Trading" commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted.
(d) If any cash dividend or other distribution is made to all or substantially all holders of Common Shares, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect on the Record Date for such distribution CR' = the Fixed Conversion Rate in effect immediately after the Record Date for open of business on such distribution SP0 = the Current Market Price of one of the Common Shares on the Record Date for such distribution C = the amount in cash per share the Company distributes to holders of Common Shares. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Record Date for such ex-dividend or distributiondate; provided that if such dividend or distribution is not paid or made, the Conversion Rate shall again be adjusted to be 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 offer or exchange offer for Common Shares to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the Current Market Price per Common Share on the Trading Day immediately preceding the date such tender offer or exchange offer is announced, the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect on the date such tender or exchange offer expires CR' = the Conversion Rate in effect on the day next succeeding the date such tender or exchange offer expires AC = the fair market value (as determined by the Board of Directors) of the aggregate consideration paid or payable for shares purchased in such tender or exchange offer OS0 = the number of Common Shares the Guarantor’s ordinary shares outstanding immediately prior to the open of business on the Trading Day immediately preceding the date such tender or exchange offer is announced OS' = the number of Common Shares outstanding less any shares purchased in the tender or exchange offer at the time such tender or exchange offer expires SP' = the Current Market Price of Common Shares on the Trading Day immediately preceding the date such tender or exchange offer is announced. If the Company is obligated to repurchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange had not been made.
(f) For purposes of this Section 13.4, the following terms shall have the meaning indicated:ex-dividend date;
Appears in 1 contract
Samples: Second Supplemental Indenture (AngloGold Ashanti Holdings PLC)
Conversion Rate Adjustments. The Conversion Rate shall be adjusted from time to time by the Company as follows, except that the Company shall not make any adjustment if holders of Securities may participate, as a result of holding the Securities, in the transaction described without having to convert their Securities.
(a) If the Company, at any time or from time to time while any of the Securities are outstanding, pays a dividend or make a distribution in Common Shares to all holders of its outstanding Common Shares, or if the Company subdivides or combines its Common Shares then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such event CR' ’ = the Conversion Rate in effect immediately after such event OS0 = the number of Common Shares outstanding immediately prior to such event OS' ’ = the number of Common Shares outstanding immediately after such event Such adjustment shall become effective immediately after the opening of business on the day following the Record Date for such dividend or distribution, or the date fixed for determination for such share split or share combination. If any dividend or distribution of the type described in this Section 13.4(a16.04(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) If the Company, at any time or from time to time while any of the Securities are outstanding, issues to all or substantially all holders of its outstanding Common Shares certain rights or warrants to purchase Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) at a price per share (or having a conversion, exchange or exercise price per share) less than the Closing Sale Price of Common Shares on the Record Date for shareholders entitled to receive such rights and warrants, which rights or warrants are exercisable for not more than 60 days, the Conversion Rate shall be adjusted based on the following formula (provided that the Conversion Rate shall be readjusted to the extent that such rights or warrants are not exercised prior to their expiration): where, CR0 = the Conversion Rate in effect immediately prior to such event CR' ’ = the Conversion Rate in effect immediately after such event OS0 = the number of Common Shares outstanding on the close of business on the next Business Day following such Record Date X = the total number of Common Shares issuable pursuant to such rights Y = the number of Common Shares equal to the aggregate offering price that the total number of shares so offered would purchase at such Closing Sale Price of Common Shares on the Record Date of such issuance determined by multiplying such total number of shares so offered by the exercise price of such rights or warrants and dividing the product so obtained by such Closing Sale Price. Such adjustment shall become effective immediately after the opening of business on the day following the date of announcement of such issuance. To the extent that Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered pursuant to such rights or warrants, upon the expiration or termination 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 the delivery of only the number of Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually delivered. In the event that 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 the date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase Common Shares at less than such Closing Sale Price, and in determining the aggregate offering price of such Common Shares, there shall be taken into account any consideration received for such rights or warrants and the value of such consideration, if other than cash, to be determined in good faith by the Board of Directors of the Company. For the purposes of this Section 13.4(b16.04(b), rights or warrants distributed by the Company to all holders of its Common Shares entitling them to subscribe for or purchase shares of the Company's ’s capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("“Trigger Event"”): (1) are deemed to be transferred with such Common Shares; (2) are not exercisable; and (3) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 13.4(b16.04(b) (and no adjustment to the Conversion Price under this Section 13.4(b16.04(b) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.4(b16.04(b). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.4(b16.04(b) was made, (1) in the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any Holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder of Common Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all applicable holders of Common Shares as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(c) If the Company, at any time or from time to time while the Securities are outstanding, distributes to all or substantially all holders of its Common Shares, Common Shares of the Company, evidences of its indebtedness or assets, including securities, but excluding:
(i) dividends or distributions referred to in Section 13.4(a16.04(a);
(ii) rights or warrants referred to in Section 13.4(b16.04(b); and
(iii) dividends or distributions referred to in Section 13.4(d16.04(d); then the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such distribution CR' ’ = the Conversion Rate in effect immediately after such distribution SP0 = the Current Market Price of Common Shares on the such Record Date for such distribution FMV = the fair market value (as determined by the Board of Directors of the Company) of the Common Shares, evidences of indebtedness, assets or property distributed with respect to each outstanding Common Share on the Record Date for such distribution Such adjustment shall become effective immediately prior to the opening of business on the day following the Record Date for such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 13.4(c16.04(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive, in addition to the Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of conversion, in which case the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Shares, Common Shares, evidences of indebtedness or assets, subject to readjustment in the event of the expiration, termination or redemption of such rights. With respect to an adjustment pursuant to this Section 13.4(c16.04(c) where there has been a payment of a dividend or other distribution on the Common Shares or common shares 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 effective date fixed for determination of shareholders entitled to receive the distribution shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such distribution CR' ’ = the Conversion Rate in effect immediately after such distribution FMV0 = the average of the Closing Sale Prices of the Common Shares or similar equity interest distributed to holders of Common Shares applicable to one common share over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the NYSE Amex Equities The American Stock Exchange or such other national or regional exchange or market on which the Securities are then listed or quoted MP0 = the average of the Closing Sale Prices of Common Shares over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the NYSE Amex Equities The American Stock Exchange or such other national or regional exchange or market on which the Securities are then listed or quoted The adjustment to the Conversion Rate under the preceding paragraph will occur on the fourteenth Trading Day after the date on which "“Ex-Dividend Trading" ” commences for such distribution on the NYSE Amex Equities The American Stock Exchange or such other national or regional exchange or market on which the Securities are then listed or quoted.
(d) If any cash dividend or other distribution is made to all or substantially all holders of Common Shares, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect on the Record Date for such distribution CR' ’ = the Conversion Rate in effect immediately after the Record Date for such distribution SP0 = the Current Market Price of one of the Common Shares on the Record Date for such distribution C = the amount in cash per share the Company distributes to holders of Common Shares. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Record Date for such dividend or distribution; provided that if such dividend or distribution is not paid or made, the Conversion Rate shall again be adjusted to be 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 offer or exchange offer for Common Shares to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the Current Market Price last reported sale price per Common Share on the Trading Day immediately preceding next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer is announcedoffer, the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect on the date such tender or exchange offer expires CR' ’ = the Conversion Rate in effect on the day next succeeding the date such tender or exchange offer expires AC = the fair market value (as determined by the Board of Directors) of the aggregate consideration paid or payable for shares purchased in such tender or exchange offer OS0 = the number of Common Shares outstanding on the Trading Day immediately preceding the date such tender or exchange offer is announced OS' ’ = the number of Common Shares outstanding less any shares purchased in the tender or exchange offer at the time such tender or exchange offer expires SP' ’ = the Current Market Price average of the last reported sale prices of the Common Shares over the ten consecutive trading day period commencing on the Trading Day immediately preceding next succeeding the date such tender or exchange offer is announcedexpires. The adjustment to the conversion rate under the preceding paragraph will occur on the tenth Trading Day next succeeding the date such tender or exchange offer expires. If the Company is obligated to repurchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange had not been made.
(f) For purposes of this Section 13.416.04, the following terms shall have the meaning indicated:
Appears in 1 contract
Samples: Indenture (Gold Reserve Inc)
Conversion Rate Adjustments. The Conversion Rate shall be adjusted from time to time by the Company as follows, except that the Company shall not make any adjustment if holders of Securities may participate, as a result of holding the Securities, in the transaction described without having to convert their Securities.
(a) If the Company, at any time or from time to time while any of the Securities are outstanding, pays a dividend or make a distribution in Common Shares to all holders of its outstanding Common Shares, or if the Company subdivides or combines its Common Shares then the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such event CR' = the Conversion Rate in effect immediately after such event OS0 = the number of Common Shares outstanding immediately prior to such event OS' = the number of Common Shares outstanding immediately after such event Such adjustment shall become effective immediately after the opening of business on the day following the Record Date for such dividend or distribution, or the date fixed for determination for such share split or share combination. If any dividend or distribution of the type described in this Section 13.4(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(b) If the Company, at any time or from time to time while any of the Securities are outstanding, issues to all or substantially all holders of its outstanding Common Shares certain rights or warrants to purchase Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) at a price per share (or having a conversion, exchange or exercise price per share) less than the Closing Sale Price of Common Shares on the Record Date for shareholders entitled to receive such rights and warrants, which rights or warrants are exercisable for not more than 60 days, the Conversion Rate shall be adjusted based on the following formula (provided that the Conversion Rate shall be readjusted to the extent that such rights or warrants are not exercised prior to their expiration): where, CR0 = the Conversion Rate in effect immediately prior to such event CR' = the Conversion Rate in effect immediately after such event OS0 = the number of Common Shares outstanding on the close of business on the next Business Day following such Record Date X = the total number of Common Shares issuable pursuant to such rights Y = the number of Common Shares equal to the aggregate offering price that the total number of shares so offered would purchase at such Closing Sale Price of Common Shares on the Record Date of such issuance determined by multiplying such total number of shares so offered by the exercise price of such rights or warrants and dividing the product so obtained by such Closing Sale Price. Such adjustment shall become effective immediately after the opening of business on the day following the date of announcement of such issuance. To the extent that Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered pursuant to such rights or warrants, upon the expiration or termination 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 the delivery of only the number of Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually delivered. In the event that 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 the date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase Common Shares at less than such Closing Sale Price, and in determining the aggregate offering price of such Common Shares, there shall be taken into account any consideration received for such rights or warrants and the value of such consideration, if other than cash, to be determined in good faith by the Board of Directors of the Company. For the purposes of this Section 13.4(b), rights or warrants distributed by the Company to all holders of its Common Shares entitling them to subscribe for or purchase shares of the Company's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (1) are deemed to be transferred with such Common Shares; (2) are not exercisable; and (3) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 13.4(b) (and no adjustment to the Conversion Price under this Section 13.4(b) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.4(b). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.4(b) was made, (1) in the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any Holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder of Common Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all applicable holders of Common Shares as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(c) If the Company, at any time or from time to time while the Securities are outstanding, distributes to all or substantially all holders of its Common Shares, Common Shares of the Company, evidences of its indebtedness or assets, including securities, but excluding:
(i) dividends or distributions referred to in Section 13.4(a);
(ii) rights or warrants referred to in Section 13.4(b); and
(iii) dividends or distributions referred to in Section 13.4(d); then the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such distribution CR' = the Conversion Rate in effect immediately after such distribution SP0 = the Current Market Price of Common Shares on the Record Date for such distribution FMV = the fair market value (as determined by the Board of Directors of the Company) of the Common Shares, evidences of indebtedness, assets or property distributed with respect to each outstanding Common Share on the Record Date for such distribution Such adjustment shall become effective immediately prior to the opening of business on the day following the Record Date for such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 13.4(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive, in addition to the Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of conversion, in which case the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Shares, Common Shares, evidences of indebtedness or assets, subject to readjustment in the event of the expiration, termination or redemption of such rights. With respect to an adjustment pursuant to this Section 13.4(c) where there has been a payment of a dividend or other distribution on the Common Shares or common shares 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 effective date fixed for determination of shareholders entitled to receive the distribution shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such distribution CR' = the Conversion Rate in effect immediately after such distribution FMV0 = the average of the Closing Sale Prices of the Common Shares or similar equity interest distributed to holders of Common Shares applicable to one common share over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the NYSE Amex Equities The American Stock Exchange or such other national or regional exchange or market on which the Securities are then listed or quoted MP0 = the average of the Closing Sale Prices of Common Shares over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the NYSE Amex Equities The American Stock Exchange or such other national or regional exchange or market on which the Securities are then listed or quoted The adjustment to the Conversion Rate under the preceding paragraph will occur on the fourteenth Trading Day after the date on which "Ex-Dividend Trading" commences for such distribution on the NYSE Amex Equities The American Stock Exchange or such other national or regional exchange or market on which the Securities are then listed or quoted.
(d) If any cash dividend or other distribution is made to all or substantially all holders of Common Shares, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect on the Record Date for such distribution CR' = the Conversion Rate in effect immediately after the Record Date for such distribution SP0 = the Current Market Price of one of the Common Shares on the Record Date for such distribution C = the amount in cash per share the Company distributes to holders of Common Shares. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Record Date for such dividend or distribution; provided that if such dividend or distribution is not paid or made, the Conversion Rate shall again be adjusted to be 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 offer or exchange offer for Common Shares to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the Current Market Price per Common Share on the Trading Day immediately preceding the date such tender offer or exchange offer is announced, the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect on the date such tender or exchange offer expires CR' = the Conversion Rate in effect on the day next succeeding the date such tender or exchange offer expires AC = the fair market value (as determined by the Board of Directors) of the aggregate consideration paid or payable for shares purchased in such tender or exchange offer OS0 = the number of Common Shares outstanding on the Trading Day immediately preceding the date such tender or exchange offer is announced OS' = the number of Common Shares outstanding less any shares purchased in the tender or exchange offer at the time such tender or exchange offer expires SP' = the Current Market Price of Common Shares on the Trading Day immediately preceding the date such tender or exchange offer is announced. If the Company is obligated to repurchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange had not been made.
(f) For purposes of this Section 13.4, the following terms shall have the meaning indicated:
Appears in 1 contract
Samples: Indenture (Minefinders Corp Ltd.)
Conversion Rate Adjustments. Each share of the Series A Cumulative Convertible Preferred Shares shall be convertible into a number shares of Voting Common Stock equal to the Conversion Rate, subject to adjustment from time to time by the Corporation in accordance with the provisions of this Section 9. References to Conversion Rate in this Certificate means the Conversion Rate in effect on the relevant date. Notwithstanding anything in this Section 9, the Conversion Rate may not be reduced below the initial Conversion Rate as of the date hereof, except for adjustments made under Section 9(a)(i) as a result of a share split or share combination. The Conversion Rate shall be adjusted from time to time by the Company Corporation as follows, except that the Company shall not make any adjustment if holders of Securities may participate, as a result of holding the Securities, in the transaction described without having to convert their Securities.:
(ai) If the Company, at any time or from time to time while any Corporation issues shares of the Securities are outstanding, pays Voting Common Stock as a dividend or make a distribution in on shares of Voting Common Shares to all holders of its outstanding Common SharesStock, or if the Company subdivides a share split or combines its Common Shares then share combination is effected, the Conversion Rate will be adjusted based on the following formula: CR 1 = CR O times OS 1 divided by OS O where, CR0 CR O = the Conversion Rate in effect immediately prior to such event CR' CR 1 = the Conversion Rate in effect immediately after such event OS0 OS O = the number of shares of Voting Common Shares Stock outstanding immediately prior to such event OS' OS 1 = the number of shares of Voting Common Shares Stock outstanding immediately after such event Such An adjustment made pursuant to this Section 9(a)(i) shall become effective on the date immediately after the opening of business on the day following the Record Date for such dividend or distribution, or (x) the date fixed for the determination for of stockholders entitled to receive such share dividend or other distribution or (y) the date on which such split or share combinationcombination becomes effective, as applicable. If any dividend or distribution of the type described in this Section 13.4(a9(a)(i) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared.
(bii) If the Company, at any time or from time to time while any of the Securities are outstanding, Corporation issues to all or substantially all holders of its outstanding Voting Common Shares certain rights Stock any rights, warrants, options or warrants other securities entitling them for a period of not more than 20 days after the date of issuance thereof to subscribe for or purchase shares of the Voting Common Shares (Stock, or securities convertible into or exchangeable or exercisable for shares of Voting Common Shares) Stock within 20 days after the issuance thereof, in either case at a an exercise price per share (or having a conversion, exchange or exercise conversion price per share) share less than the Closing Sale Price of shares of the Voting Common Shares Stock on the Record Date for shareholders entitled to receive business day immediately preceding the time of announcement of such rights and warrants, which rights or warrants are exercisable for not more than 60 daysissuance, the Conversion Rate shall will be adjusted based on the following formula (provided that the Conversion Rate shall will be readjusted to the extent that such rights rights, warrants options, or warrants other securities or convertible securities are not exercised or converted prior to their expirationthe expiration of the exercisability or convertibility thereof): CR 1 = CR O times (OS O +X) divided by (OS O +Y) where, CR0 CR O = the Conversion Rate in effect immediately prior to such event CR' CR l = the Conversion Rate in effect immediately after such event OS0 OS O = the number of shares of Voting Common Shares Stock outstanding on the close of business on the next Business Day following immediately prior to such Record Date event X = the total number of shares of Voting Common Shares Stock issuable pursuant to such rights rights. warrants, options, other securities or convertible securities Y = the number quotient of (A) the aggregate price payable to exercise such rights, warrants, options, other securities or convertible securities and (B) the average of the Closing Sale Prices of the Voting Common Shares equal Stock for the 20 consecutive Trading Days ending two Trading Days prior to the aggregate offering price that date of announcement for the total number of shares so offered would purchase at such Closing Sale Price of Common Shares on the Record Date issuance of such issuance determined by multiplying rights, warrants, options, other securities or convertible securities An adjustment made pursuant to this Section 9(a)(ii) shall be made successively whenever such total number of shares so offered by the exercise price of such rights rights, warrants, options, other securities or warrants convertible securities are issued, and dividing the product so obtained by such Closing Sale Price. Such adjustment shall become effective immediately after the opening of business on the day following the date of announcement of such issuance. To If, at the extent that Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered pursuant to end of the period during which such rights or rights, warrants, upon the expiration options, other securities or termination of such rights convertible securities are exercisable or convertible, not all rights, warrants, options, other securities or convertible securities have been exercised or converted, as the case may be, the adjusted Conversion Rate shall be immediately readjusted to the Conversion Rate which what it would then be in effect had the adjustments made have been based upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of additional shares of Voting Common Shares Stock actually issued (or the number of shares of Voting Common Stock actually issued upon conversion of convertible securities convertible into or exchangeable or exercisable for Common Shares) actually deliveredissued). In the event that such rights or warrants are not so issuedFor purposes of this Section 9(a)(ii), the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if the date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights such rights, warrants, options, other securities or warrants convertible securities entitle the holders holder to subscribe for or purchase or exercise a conversion right for shares of . Voting Common Shares Stock at less than such the average Closing Sale PricePrice of the Voting Common Stock, and in determining the aggregate offering exercise or conversion price payable for such shares of such Voting Common SharesStock, there shall be taken into account any consideration received by the Corporation for such rights rights, warrants, options, other securities or warrants convertible securities and any amount payable on exercise or conversion thereof, with the value of such consideration, consideration if other than cash, cash to be determined in good faith by the Board of Directors of Directors.
(iii) If the Company. For the purposes of this Section 13.4(b), rights or warrants distributed by the Company to all holders of its Common Shares entitling them to subscribe for or purchase Corporation distributes shares of the Company's capital stock (either initially Corporation’s Capital Stock, evidences of the Corporation’s indebtedness or under certain circumstances)other assets or property of the Corporation or any of its Subsidiaries to all or substantially all of the holders of the Corporation’s Voting Common Stock, which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): excluding: (1) are deemed dividends, distributions and rights, warrants, options, other securities or convertible securities referred to be transferred with such Common Sharesin Sections 9(a)(i)or 9(a) (ii); (2) are not exercisabledividends or distributions paid exclusively in cash; and (3) are also issued Spin-Offs described in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 13.4(b9(a)(iii) (and no adjustment to the Conversion Price under this Section 13.4(b) will be required) until the occurrence of the earliest Trigger Eventbelow, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.4(b). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.4(b) was made, (1) in the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any Holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder of Common Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all applicable holders of Common Shares as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued.
(c) If the Company, at any time or from time to time while the Securities are outstanding, distributes to all or substantially all holders of its Common Shares, Common Shares of the Company, evidences of its indebtedness or assets, including securities, but excluding:
(i) dividends or distributions referred to in Section 13.4(a);
(ii) rights or warrants referred to in Section 13.4(b); and
(iii) dividends or distributions referred to in Section 13.4(d); then the Conversion Rate shall will be adjusted based on the following formula: CR 1 = CR O times SP O divided by (SP O -FMV) where, CR0 CR O = the Conversion Rate in effect immediately prior to such distribution CR' CR 1 = the Conversion Rate in effect immediately after such distribution SP0 SP O = the Current Market Price average of the Closing Sale Prices of the Voting Common Shares on Stock for the Record Date 20 consecutive Trading Days ending two Trading Days prior to the record date for such distribution FMV = the fair market value Fair Market Value (as determined in good faith by the Board of Directors of the CompanyDirectors) of the Common Sharesshares of Capital Stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Voting Common Share Stock on the Record Date record date for such distribution Such An adjustment made pursuant to the above paragraph shall be made successively whenever any such distribution is made and shall become effective immediately prior to the opening of business on the day following immediately after the Record Date dated fixed for the determination of stockholders entitled to receive such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 13.4(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive, in addition to the Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of conversion, in which case the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Shares, Common Shares, evidences of indebtedness or assets, subject to readjustment in the event of the expiration, termination or redemption of such rights. With respect to an adjustment pursuant to this Section 13.4(c9(a)(iii) where there has been a payment of a dividend or other distribution on the Voting Common Shares Stock or common shares of capital stock of any class or series, or similar equity interest, of or relating to a Subsidiary subsidiary or other business unit of the Corporation which have Closing Sale Prices for the first 20 Trading Days after the payment of such dividend or distribution shall have been made (such transaction herein. referred to as a "“Spin-Off"”), including, for the avoidance of doubt, the Spin-Off of the Crimson Wine Group, the Conversion Rate in effect immediately before 5:00 p.m., New York City time, the close of business on the effective record date fixed for determination of shareholders holders of Voting Common Stock entitled to receive the such payment of such dividend or distribution shall will be increased based on the following formula: CR 1= CR O times (FMV O +MP O) divided by MP O where, CR0 CR O = the Conversion Rate in effect immediately prior to such distribution CR' CR 1 = the Conversion Rate in effect immediately after such distribution FMV0 FMV O = the average of the Closing Sale Prices of the Common Shares capital stock or similar equity interest distributed to holders of Voting Common Shares Stock applicable to one common share of Voting Common Stock over the ten consecutive Trading-Day period commencing on and including the fifth first 20 Trading Day Days after the effective date on which Exof such Spin-Dividend Trading commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted MP0 Off MP O = the average of the Closing Sale Prices of the Voting Common Shares Stock over the ten first 20 consecutive Trading-Day period commencing on and including the fifth Trading Day Days after the effective date on which Exof such Spin-Dividend Trading commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted Off The adjustment to the Conversion Rate under the preceding paragraph will occur on the fourteenth 20th Trading Day after from, and including, the effective date on which "Exof such Spin-Dividend Trading" commences for such distribution on Off. Notwithstanding anything to the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted.
(d) If any cash dividend or other distribution is made to all or substantially all holders of Common Sharescontrary herein, the Conversion Rate Price shall not be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect on the Record Date for such distribution CR' = the Conversion Rate in effect immediately after the Record Date for such distribution SP0 = the Current Market Price of one reduced by more than $0.81 as a result of the Common Shares on Spin-Off of the Record Date for such distribution C = the amount in cash per share the Company distributes to holders of Common SharesCrimson Wine Group. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Record Date for such dividend or distribution; provided that if If any such dividend or distribution described in this Section 9(a)(iii) is declared but not paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(eiv) If the Company Corporation makes any cash dividend or distribution during any of its Subsidiaries makes a payment the Corporation’s quarterly fiscal periods to all or substantially all holders of Voting Common Stock, in respect an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds $0.0625 per share (the “Base Dividend”) (appropriately adjusted from time to time for any share dividends on or subdivisions of a tender offer or exchange offer for the Voting Common Shares to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the Current Market Price per Common Share on the Trading Day immediately preceding the date such tender offer or exchange offer is announcedStock), the Conversion Rate shall will be increased adjusted based on the following formula: CR 1 = CR O times SP O divided by (SP O –C) where, CR0 CR O = the Conversion Rate in effect on immediately prior to the record date for such tender or exchange offer expires CR' distribution CR 1 = the Conversion Rate in effect immediately after the record date for such distribution SP O = the average of the Closing Sale Prices of the Voting Common Stock for the 20 consecutive Trading Days ending two Trading Days prior to the record date of such distribution C = the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend An adjustment made pursuant to this Section 9(a)(iv) shall become effective on the day next succeeding date immediately after the date Record Date for the determination of stockholders entitled to receive such tender dividend or exchange offer expires AC = the fair market value (as determined by the Board of Directorsdistribution. If any dividend or distribution described in this Section 9(a)(iv) of the aggregate consideration is declared but not so paid or payable for shares purchased in such tender or exchange offer OS0 = the number of Common Shares outstanding on the Trading Day immediately preceding the date such tender or exchange offer is announced OS' = the number of Common Shares outstanding less any shares purchased in the tender or exchange offer at the time such tender or exchange offer expires SP' = the Current Market Price of Common Shares on the Trading Day immediately preceding the date such tender or exchange offer is announced. If the Company is obligated to repurchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescindedmade, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such tender dividend or exchange distribution had not been made.
(f) For purposes of declared. No adjustment to the Conversion Rate pursuant to this Section 13.49(a)(iv) shall be made, if the Corporation distributes, no later than 20 days after the payment date for any aforesaid cash dividend or distribution in excess of the Base Dividend, to each holder of the Series A Cumulative Convertible Preferred Shares an amount in cash equal to the product of (A) the amount in cash per share the Corporation distributes to holders of Voting Common Stock that exceeds the Base Dividend, multiplied by (B) the number of shares of Voting Common Stock in which the shares of the Series A Cumulative Convertible Preferred Shares held by such holder is convertible on the date preceding the date of such payment to such holder. The Base Dividend shall be subject to adjustment on account of any of the events set forth in Section 9(a)(i). Any such adjustment will be effected by multiplying the Base Dividend by a fraction, the following terms shall have numerator of which will equal OS O and the denominator of which will equal OS 1, in each case, within the meaning indicated:of Section 9(a)(i).
Appears in 1 contract
Samples: Exchange Agreement (Jefferies Financial Group Inc.)
Conversion Rate Adjustments. (a) The Conversion Rate shall be adjusted from time to time by the Company as follows, except that for the Company shall not make any adjustment if following events:
(1) the issuances to all or substantially all holders of Securities may participate, the Common Stock as a result of holding the Securities, in the transaction described without having to convert their Securities.
(a) If the Company, at any time or from time to time while any of the Securities are outstanding, pays a dividend or make a distribution in on the Common Shares to all holders of its outstanding Common SharesStock, or if certain subdivisions or combinations of the Company subdivides or combines its Common Shares then Stock, in which event the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to at 5:00 p.m., New York City time, on the Record Date for such event CR' dividend or distribution or the effective date of such subdivision or combination CR1 = the Conversion Rate in effect immediately after the Record Date for such event dividend or distribution or the effective date of such subdivision or combination OS0 = the number of shares of Common Shares Stock outstanding immediately prior to at 5:00 p.m., New York City time, on the Record Date for such event OS' dividend or distribution or the effective date of such subdivision or combination OS1 = the number of shares of Common Shares Stock that would be outstanding immediately after after, and solely as a result of, such event event. Such adjustment shall become effective immediately after the opening of business on the day following the Record Date for such dividend or distribution, distribution or the effective date fixed for determination for of such share split subdivision or share combination. If any dividend or distribution of the type described in Section 10.05(a)(1) of this Section 13.4(a) First Supplemental Indenture is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which that would then be in effect if such dividend or distribution had not been declared.
(b2) If the Company, at any time or from time to time while any of the Securities are outstanding, issues issuances to all or substantially all holders of its outstanding the Common Shares Stock of certain rights or warrants entitling them to purchase purchase, for a period of 45 calendar days or less, shares of the Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) Stock at a price per share (or having a conversion, exchange or exercise price per share) less than the Closing Sale Current Market Price of Common Shares on the Record Date for shareholders entitled to receive such rights and warrantsStock, in which rights or warrants are exercisable for not more than 60 days, event the Conversion Rate shall will be adjusted based on the following formula (provided formula: OS0 + Y where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Record Date CR1 = the Conversion Rate in effect immediately after the Record Date OS0 = the number of shares of Common Stock outstanding at 5:00 p.m., New York City time, on the Record Date X = the total number of shares of Common Stock issuable pursuant to such rights or warrants Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights or warrants divided by the Current Market Price. Such adjustment shall become effective immediately after the Record Date for such distribution. In the event that such rights or warrants are not so distributed, the Conversion Rate shall again be readjusted adjusted to be the Conversion Rate that would then be in effect if the Record Date for such distribution had not occurred. To the extent that such rights or warrants are not exercised prior to their expiration): where, CR0 = the Conversion Rate in effect immediately prior to such event CR' = the Conversion Rate in effect immediately after such event OS0 = the number expiration or shares of Common Shares outstanding on the close of business on the next Business Day following such Record Date X = the total number of Common Shares issuable pursuant to such rights Y = the number of Common Shares equal to the aggregate offering price that the total number of shares so offered would purchase at such Closing Sale Price of Common Shares on the Record Date of such issuance determined by multiplying such total number of shares so offered by the exercise price of such rights or warrants and dividing the product so obtained by such Closing Sale Price. Such adjustment shall become effective immediately after the opening of business on the day following the date of announcement of such issuance. To the extent that Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) Stock are otherwise not delivered pursuant to such rights or warrants, warrants upon the expiration or termination exercise of such rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate which that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) Stock actually delivered. In determining the aggregate price payable for such shares of Common Stock, there shall be taken into account any consideration received for such rights or warrants and the value of such consideration if other than cash to be determined by the Board of Directors.
(3) the distributions to all or substantially all holders of the Common Stock, shares of the Capital Stock (other than the Common Stock), evidences of the Company’s indebtedness or assets, including securities, but excluding:
(i) any dividends or distributions referred to in the clause (1) above;
(ii) the rights and warrants referred to in clause (2) above;
(iii) any dividends or distributions paid referred to in clause (4) below;
(iv) any dividends and distributions in connection with a reclassification, change, consolidation, merger, sale, lease, transfer, conveyance or other disposition resulting in a change in the conversion consideration pursuant to Section 10.07 below; or
(v) any spin-off to which the provisions set forth below in this Section 10.06(a)(3) apply, in which event the Conversion Rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Record Date CR1 = the Conversion Rate in effect immediately after the Record Date SP0 = the Current Market Price FMV = the Fair Market Value, on the Record Date, of the shares of Capital Stock, evidences of indebtedness or assets so distributed, expressed as an amount per share of Common Stock. If the transaction that gives rise to an adjustment pursuant to this clause (3) is, however, one pursuant to which the payment of a dividend or other distribution on the Common Stock consists of shares of Capital Stock of, or similar equity interests in, a subsidiary or other business unit of the Company (i.e., a spinoff) that are, or, when issued, will be, traded or quoted on the NYSE or any other national or regional securities exchange or market, then the Conversion Rate will instead be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect at 5:00 p.m., New York City time, on the Record Date CR1 = the Conversion Rate in effect immediately after the Record Date FMV0 = the average of the Closing Sale Prices of the Capital Stock or similar equity interests distributed to holders of the Common Stock applicable to one share of Common Stock over the 10 consecutive Trading Day period commencing on and including the effective date of the spinoff MP0 = the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on and including the effective date of the spinoff. Such increase shall become effective immediately after the Record Date for such dividend or distribution. In the event that such rights dividend or warrants are distribution is not so issuedmade, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if the date fixed for the determination of stockholders entitled to receive such rights or warrants distribution had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase Common Shares at less than such Closing Sale Price, and in determining the aggregate offering price of such Common Shares, there shall be taken into account any consideration received for such rights or warrants and the value of such consideration, if other than cash, to be determined in good faith by the Board of Directors of the Company. For the purposes of this Section 13.4(b), rights or warrants distributed by the Company to all holders of its Common Shares entitling them to subscribe for or purchase shares of the Company's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (1) are deemed to be transferred with such Common Shares; (2) are not exercisable; and (3) are also issued in respect of future issuances of Common Shares, shall be deemed not to have been distributed for purposes of this Section 13.4(b) (and no adjustment to the Conversion Price under this Section 13.4(b) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.4(b). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.4(b) was made, (1) in the case of any such rights or warrants which shall all have been redeemed or purchased without exercise by any Holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder of Common Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all applicable holders of Common Shares as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issueddeclared.
(c4) If the Company, at any time dividends or from time to time while the Securities are outstanding, distributes other distributions consisting exclusively of cash to all or substantially all holders of its Common Shares, Common Shares of the Company, evidences of its indebtedness or assets, including securities, but excluding:
Stock (i) other than dividends or distributions referred to made in Section 13.4(aconnection with the Company’s liquidation, dissolution or winding-up or upon a consolidation or merger, sale, lease, transfer, conveyance or other disposition);
(ii) rights or warrants referred to , in Section 13.4(b); and
(iii) dividends or distributions referred to in Section 13.4(d); then which event the Conversion Rate shall will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such distribution CR' = the Conversion Rate in effect immediately after such distribution SP0 = the Current Market Price of Common Shares on the Record Date for such distribution FMV = the fair market value (as determined by the Board of Directors of the Company) of the Common Shares, evidences of indebtedness, assets or property distributed with respect to each outstanding Common Share on the Record Date for such distribution Such adjustment shall become effective immediately prior to the opening of business on the day following the Record Date for such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 13.4(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive, in addition to the Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of conversion, in which case the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Shares, Common Shares, evidences of indebtedness or assets, subject to readjustment in the event of the expiration, termination or redemption of such rights. With respect to an adjustment pursuant to this Section 13.4(c) where there has been a payment of a dividend or other distribution on the Common Shares or common shares 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 effective date fixed for determination of shareholders entitled to receive the distribution shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such distribution CR' Record Date CR1 = the Conversion Rate in effect immediately after such distribution FMV0 the Record Date SP0 = the average of Current Market Price C = the Closing Sale Prices of amount in cash per share the Common Shares or similar equity interest distributed Company distributes to holders of Common Shares applicable to one common share over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day Stock. Such adjustment shall become effective immediately after the date on which Ex-Dividend Trading commences Record Date for such distribution on dividend or distribution. In the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted MP0 = the average of the Closing Sale Prices of Common Shares over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for event that such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted The adjustment to the Conversion Rate under the preceding paragraph will occur on the fourteenth Trading Day after the date on which "Ex-Dividend Trading" commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted.
(d) If any cash dividend or other distribution is made to all or substantially all holders of Common Sharesnot so made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.
(5) the purchases of Common Stock pursuant to a tender offer or exchange offer made by the Company or any of its subsidiaries to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Closing Sale Price of Common Stock on the Trading Day preceding the last date (the “Expiration Date”) on which tenders or exchanges may be made pursuant to such tender or exchange offer; in which event the conversion rate will be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect on the Record Date for such distribution CR' = the Conversion Rate in effect immediately after the Record Date for such distribution SP0 = the Current Market Price of one of the Common Shares on the Record Date for such distribution C = the amount in cash per share the Company distributes to holders of Common Shares. Such adjustment shall become effective immediately after at 5:00 p.m., New York City time, on the Record Expiration Date for such dividend or distribution; provided that if such dividend or distribution is not CR1 = the Conversion Rate in effect immediately after the Expiration Date FMV = the Fair Market Value, on the Expiration Date, of the aggregate value of all cash and any other consideration paid or madepayable for shares validly tendered or exchanged and not withdrawn as of the Expiration Date OS1 = the number of shares of Common Stock outstanding immediately after the last time tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”) OS0 = the number of shares of Common Stock outstanding immediately after the Expiration Time SP1 = the average of the Closing Sale Prices of Common Stock over the 10 consecutive Trading Day period commencing on the Trading Day immediately succeeding the Expiration Date. An adjustment, if any, to the Conversion Rate pursuant to this Section 10.06(a)(5) shall become effective immediately prior to the opening of business on the Trading Day immediately following the Expiration Date. In the event that the Company or a subsidiary of the Company is obligated to purchase shares of Common Stock pursuant to any such tender offer or exchange offer, but the Company or such Subsidiary is permanently prevented by applicable law from effecting any such purchases, or all such purchases are rescinded, then the Conversion Rate shall again be adjusted to be 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 offer or exchange offer for Common Shares to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the Current Market Price per Common Share on the Trading Day immediately preceding the date such tender offer or exchange offer is announced, the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect on the date such tender or exchange offer expires CR' = the Conversion Rate in effect on the day next succeeding the date such tender or exchange offer expires AC = the fair market value (as determined by the Board of Directors) of the aggregate consideration paid or payable for shares purchased in such tender or exchange offer OS0 = the number of Common Shares outstanding on the Trading Day immediately preceding the date such tender or exchange offer is announced OS' = the number of Common Shares outstanding less any shares purchased in the tender or exchange offer at the time such tender or exchange offer expires SP' = the Current Market Price of Common Shares on the Trading Day immediately preceding the date such tender or exchange offer is announced. If the Company is obligated to repurchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that which would then be in effect if such tender offer or exchange offer had not been made. Except as set forth in the preceding sentence, if the application of this Section 10.06(a)(5) to any tender offer or exchange offer would result in a decrease in the Conversion Rate, no adjustment shall be made for such tender offer or exchange offer under this Section 10.06(a)(5).
(b) In cases where the Fair Market Value of assets, debt securities or certain rights, warrants or options to purchase the Company’s securities, applicable to one share of Common Stock, distributed to stockholders:
(i) equals or exceeds the average Closing Sale Price of Common Stock over the ten consecutive Trading Day period ending on the Record Date for such distribution, or
(ii) such average Closing Sale Price exceeds the Fair Market Value of such assets, debt securities or rights, warrants or options so distributed by less than $1.00, rather than being entitled to an adjustment in the Conversion Rate, the Holder of a Debenture will be entitled to receive upon conversion, in addition to the cash and shares of Common Stock, if any, the kind and amount of assets, debt securities or rights, warrants or options comprising the distribution, if any, that such Holder would have received if such Holder had converted such Debentures immediately prior to the Record Date for determining the stockholders entitled to receive the distribution.
(c) To the extent permitted by applicable law, the Company may from time to time increase the Conversion Rate by any amount for any period of at least 20 Business Days, the increase is irrevocable during the period and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall mail to holders of record of the Debentures a notice of the increase, which notice will be given at least 15 calendar days prior to the effectiveness of any such increase, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(d) The Company may make such increases in the Conversion Rate, in addition to those required by Section 10.06(a)(1)-(5), as the Board of Directors deems advisable to avoid or diminish any income tax to holders of Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes.
(e) No adjustment in the Conversion Rate shall be required unless such adjustment would require a change of at least one percent (1%) in such Conversion Rate; provided that any adjustments that by reason of this Section 10.06(e) are not required to be made shall be carried forward and the Company shall make such carry forward adjustments, regardless of whether the aggregate adjustment is less than 1%, (x) annually on the anniversary of the Closing Date and otherwise (y)(1) five Business Days prior to the Maturity Date of the Debentures (whether at stated maturity or otherwise) or (2) prior to the Redemption Date or Fundamental Change Repurchase Date or Repurchase Date, unless such adjustment has already been made. All calculations under this Article 10 shall be made by the Company and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of a share, as the case may be. No adjustment need be made for rights to purchase Common Stock for any issuance of Common Stock or any securities convertible into or convertible for Common Stock or carrying the right to purchase any of the foregoing. Interest will not accrue on any cash into which the Debentures are convertible.
(f) For purposes Whenever the Conversion Rate is adjusted as herein provided, the Company will issue a press release containing the relevant information and make this information available on the Company’s website or through another public medium as the Company may use at that time. In addition, the Company shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officers’ Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Unless and until the Trustee shall have received such Officers’ Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the Conversion Rate and may assume that the last Conversion Rate of which it has actual 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 Debentures at his last address appearing on the Register, within 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
(g) In any case in which this Section 13.410.06 provides that an adjustment shall become effective immediately after (i) a Record Date for a dividend or distribution described in Section 10.06(a)(1), 10.06(a)(3), 10.06(a)(4), (ii) the effective date for a subdivision or combination of the Common Stock described in Section 10.06(a)(1), (iii) a Record Date for the determination of stockholders entitled to receive a rights or warrants pursuant to Section 10.06(a)(2), or (iv) the expiration date for any tender or exchange offer pursuant to Section 10.06(a)(5), (each a “Determination Date”), the following terms shall have Company may elect to defer until the meaning indicated:occurrence of the applicable Adjustment Event (as hereinafter defined) (x) issuing to the holder of any Debentures converted after such Determination Date and before the occurrence of such Adjustment Event, the additional shares of Common Stock, if any, or other securities issuable upon such conversion by reason of the adjustment required by such Adjustment Event over and
Appears in 1 contract
Samples: First Supplemental Indenture (Covanta Holding Corp)
Conversion Rate Adjustments. The Conversion Rate shall be adjusted subject to adjustment from time to time by time, without duplication, upon the Company as follows, except that occurrence of any of the Company shall not make any adjustment if holders of Securities may participate, as a result of holding the Securities, in the transaction described without having to convert their Securities.following events:
(a) If the Company, at any time or from time to time while any Company issues solely shares of the Securities are outstanding, pays Common Stock as a dividend or make a distribution in Common Shares to on all holders or substantially all of its outstanding shares of Common SharesStock, or if the Company subdivides or combines its Common Shares then Stock, the Conversion Rate will shall be adjusted based on the following formula: CR = CR0 × OS OS0 where, CR0 = the Conversion Rate in effect immediately prior to such event CR' = the Conversion Rate in effect immediately after such event OS0 = the number Close of Common Shares outstanding immediately prior to such event OS' = the number of Common Shares outstanding immediately after such event Such adjustment shall become effective immediately after the opening of business Business on the day following the Record Date for such dividend or distribution, or immediately prior to the Open of Business on the effective date fixed for determination of such subdivision or combination of Common Stock, as the case may be; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such share split dividend or share combinationdistribution, or immediately after the Open of Business on the effective date of such subdivision or combination of Common Stock, as the case may be; OS0` = the number of shares of Common Stock outstanding immediately prior to the Close of Business on the Record Date for such dividend or distribution, or immediately prior to the Open of Business on the effective date of such subdivision or combination of Common Stock, as the case may be; and OS = the number of shares of Common Stock that would be outstanding immediately after giving effect to such dividend or distribution, or immediately after the effective date of such subdivision or combination of Common Stock, as the case may be. Any adjustment made under this Section 5.05(a) shall become effective immediately after the Close of Business on the Record Date for such dividend or distribution, or immediately after the Open of Business on the effective date of such subdivision or combination of Common Stock, as the case may be. If any dividend such dividend, distribution, subdivision or distribution of the type combination described in this Section 13.4(a5.05(a) is declared but not so paid or made, 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 to effect such subdivision or combination, to the Conversion Rate which that would then be in effect if such dividend or distribution had not been declareddeclared or subdivision or combination had not been announced.
(b) If the Company, at any time or from time to time while any of the Securities are outstanding, issues an Ex-Dividend Date occurs for a distribution to all or substantially all holders of its outstanding Common Shares certain rights Stock of any rights, options or warrants entitling such holders for a period of not more than 60 calendar days from the announcement date for such distribution to subscribe for or purchase shares of Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) Stock, at a price per share (or having a conversion, exchange or exercise price per share) less than the average of the Closing Sale Price Prices of the Common Shares on Stock for the Record Date 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for shareholders entitled to receive such rights and warrants, which rights or warrants are exercisable for not more than 60 daysdistribution, the Conversion Rate shall be adjusted increased based on the following formula (provided that the Conversion Rate shall be readjusted to the extent that such rights or warrants are not exercised prior to their expiration): formula: CR = CR0 × OS0 + X OS0 + Y where, CR0 = the Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such event CR' distribution; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such event distribution; OS0 = the number of shares of Common Shares Stock outstanding immediately prior to the Close of Business on the close of business on the next Business Day following such Record Date for such distribution; X = the total number of shares of Common Shares Stock issuable pursuant to such rights rights, options or warrants; and Y = the number of shares of Common Shares Stock equal to the aggregate offering price that payable to exercise such rights, options or warrants divided by the total number average of shares so offered would purchase at such the Closing Sale Price Prices of Common Shares on Stock over the Record Date of 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such issuance determined by multiplying distribution. Any increase made under this Section 5.05(b) shall be made successively whenever any such total number of shares so offered by the exercise price of such rights rights, options or warrants are issued and dividing the product so obtained by such Closing Sale Price. Such adjustment shall become effective immediately after the opening Close of business Business on the day following the date of announcement of Record Date for such issuancedistribution. To the extent that shares of Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) Stock are not delivered pursuant to such rights or warrants, upon after the expiration or termination exercise of such rights rights, options or warrants, the Conversion Rate shall be readjusted decreased to the Conversion Rate which that would then be in effect had the adjustments made upon increase with respect to the issuance of such rights rights, options or warrants been made on the basis of the delivery of only the number of shares of Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) Stock actually delivered. In the event that If such rights rights, options or warrants are not so issueddistributed, the Conversion Rate shall again be adjusted decreased to be the Conversion Rate which that would then be in effect if the date fixed Record Date for the determination of stockholders entitled to receive such rights or warrants distribution had not been fixedoccurred. In For purposes of this Section 5.05(b), in determining whether any rights rights, options or warrants entitle the holders Holders to subscribe for or purchase shares of Common Shares Stock at a price that is less than such the average of the Closing Sale Price, and in determining Prices of the aggregate offering price of such Common SharesStock over the applicable 10 consecutive Trading Day period, there shall be taken into account any consideration received the Company receives for such rights rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration, consideration if other than cash, cash to be determined in good faith by the Board of Directors Directors.
(A) If an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of shares of the Company’s capital stock, evidences of the Company’s indebtedness or other assets or property of the Company or rights, options or warrants to acquire the Company’s capital stock or other securities, to all or substantially all holders of the Common Stock (excluding (i) dividends or distributions and rights, options or warrants as to which an adjustment was effected under Section 5.05(a) or Section 5.05(b) above; (ii) dividends or distributions paid exclusively in cash covered under Section 5.05(d); and (iii) Spin-Offs), then the Conversion Rate shall be increased based on the following formula: CR = CR0 × XX0 XX0 – FMV where, CR0 = the Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such distribution; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such distribution; SP0 = the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined in good faith by the Board of Directors) of the shares of capital stock, evidences of indebtedness, assets or property or rights, options or warrants distributed with respect to each outstanding share of Common Stock as of the Open of Business on the Ex-Dividend Date for such distribution. Any increase made under the above portion of this Section 5.05(c) shall become effective immediately after the Close of Business on the Record Date for such distribution. No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if such distribution is not so paid or made, the Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common Stock, without having to convert its Notes, the amount and kind of the Relevant Distribution that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the Record Date for the distribution. For the purposes of this Section 13.4(b5.05(c)(A) (and subject in all respects to Section 5.05(f)):
(1) Rights, rights options or warrants distributed by the Company to all or substantially all holders of its the Common Shares Stock entitling them to subscribe for or purchase shares of the Company's ’s capital stock stock, including Common Stock (either initially or under certain circumstances), which rights rights, options or warrants, until the occurrence of a specified event or events ("a “Trigger Event"): ”):
(1i) are deemed to be transferred with such shares of the Common Shares; Stock;
(2ii) are not exercisable; and and
(3iii) are also issued in respect of future issuances of the Common SharesStock, shall be deemed not to have been distributed for purposes of this Section 13.4(b5.05(c) (and no adjustment to the Conversion Price Rate under this Section 13.4(b5.05(c) will shall be required) until the occurrence of the earliest Trigger Event, whereupon such rights and rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.4(b5.05(c). .
(2) If any such right right, option or warrant, including any such existing rights rights, options or warrants distributed prior to the date of this IndentureIssue Date, are subject to events, upon the occurrence of which such rights rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date the Record Date with respect to new rights rights, options or warrants with such rights (and a termination or expiration of in which case the existing rights rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). .
(3) In addition, in the event of any distribution (or deemed distribution) of rights rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentenceclause (2) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.4(b5.05(c) was made, :
(1i) in the case of any such rights rights, options or warrants which that shall all have been redeemed or purchased repurchased without exercise by any Holders holders thereof, upon such final redemption or repurchase (x) the Conversion Rate shall be readjusted upon as if such final redemption rights, options or repurchase warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distributiondistribution pursuant to Section 5.05(d), equal to the per share redemption or purchase repurchase price received by a holder or holders of Common Shares Stock with respect to such rights rights, options or warrants (assuming such holder had retained such rights rights, options or warrants), made to all applicable holders of Common Shares Stock as of the date of such redemption or repurchase, and ; and
(2ii) in the case of such rights rights, options or warrants which that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights rights, options and warrants had not been issued.
(c4) If the CompanyFor purposes of Section 5.05(a), at Section 5.05(b) and this Section 5.05(c), if any time dividend or from time distribution to time while the Securities are outstanding, distributes to all which this Section 5.05(c) is applicable includes one or substantially all holders of its Common Shares, Common Shares of the Company, evidences of its indebtedness or assets, including securities, but excludingboth of:
(i) dividends a dividend or distributions referred distribution of shares of Common Stock to in which Section 13.4(a5.05(a) is applicable (the “Clause A Distribution”);; or
(ii) rights an issuance of rights, options or warrants referred to in which Section 13.4(b5.05(b) is applicable (the “Clause B Distribution”), then:
(1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 5.05(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 5.05(c) with respect to such Clause C Distribution shall then be made; and
(iii2) dividends or distributions referred the Clause A Distribution and Clause B Distribution shall be deemed to in Section 13.4(d); then immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Section 5.05(a) and Section 5.05(b) with respect thereto shall then be made, except that, if determined by the Company (I) the “Record Date” of the Clause A Distribution and the Clause B Distribution shall be adjusted based on deemed to be the following formula: where, CR0 = Record Date of the Conversion Rate Clause C Distribution and (II) any shares of Common Stock included in effect the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to such distribution CR' = the Conversion Rate in effect immediately after such distribution SP0 = the Current Market Price Close of Common Shares Business on the Record Date for such distribution FMV = the fair market value (as determined by the Board of Directors of the Company) of the Common Shares, evidences of indebtedness, assets or property distributed with respect to each outstanding Common Share on the Record Date for such distribution Such adjustment shall become effective immediately prior to the opening Open of business Business on such effective date” within the meaning of Section 5.05(a) or “outstanding immediately prior to the Close of Business on the day following Record Date” within the Record Date for such distribution. If the Board meaning of Directors of the Company determines the fair market value of any distribution for purposes of this Section 13.4(c5.05(b).
(B) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive, in addition to the Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of conversion, in which case the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Shares, Common Shares, evidences of indebtedness or assets, subject to readjustment in the event of the expiration, termination or redemption of such rights. With respect to an adjustment pursuant to this Section 13.4(c5.05(c) where there has been a payment of an Ex-Dividend Date for a dividend or other distribution on the Common Shares or 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 unit, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a "“Spin-Off"”), the Conversion Rate in effect immediately before 5:00 p.m., New York City time, on the effective date fixed for determination of shareholders entitled to receive the distribution shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such distribution CR' = the Conversion Rate in effect immediately after such distribution FMV0 = the average of the Closing Sale Prices of the Common Shares or similar equity interest distributed to holders of Common Shares applicable to one common share over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted MP0 = the average of the Closing Sale Prices of Common Shares over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted The adjustment to the Conversion Rate under the preceding paragraph will occur on the fourteenth Trading Day after the date on which "Ex-Dividend Trading" commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted.
(d) If any cash dividend or other distribution is made to all or substantially all holders of Common Shares, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect on the Record Date for such distribution CR' = the Conversion Rate in effect immediately after the Record Date for such distribution SP0 = the Current Market Price of one of the Common Shares on the Record Date for such distribution C = the amount in cash per share the Company distributes to holders of Common Shares. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Record Date for such dividend or distribution; provided that if such dividend or distribution is not paid or made, the Conversion Rate shall again be adjusted to be 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 offer or exchange offer for Common Shares to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the Current Market Price per Common Share on the Trading Day immediately preceding the date such tender offer or exchange offer is announced, the Conversion Rate shall be increased based on the following formula: CR = CR0 × FMV + MP0 MP0 where, CR0 = the Conversion Rate in effect immediately prior to the Close of Business on the date such tender or exchange offer expires CR' Record Date for the Spin-Off; CR = the Conversion Rate in effect immediately after the Close of Business on the day next succeeding Record Date for the date such tender or exchange offer expires AC Spin-Off; FMV = the fair market value average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock (as determined by reference to the Board definition of Directors“Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first 10 consecutive Trading Day period commencing on, and including, the effective date for the Spin-Off (such period, the “Valuation Period”); and MP0 = the average of the aggregate consideration paid Closing Sale Prices of the Common Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph of this Section 5.05(c) shall be determined on the last day of the Valuation Period but will be given effect immediately after the Close of Business on the Record Date for the Spin-Off. In respect of any conversion during the Valuation Period for any Spin-Off, references within this Section 5.05(c)(B) related to 10 Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the effective date for such Spin-Off to, but excluding, the relevant Conversion Date.
(d) If an Ex-Dividend Date occurs for a cash dividend or payable for shares purchased distribution to all or substantially all holders of the Common Stock (other than (i) any dividend or distribution in such tender connection with the Company’s liquidation, dissolution or exchange offer OS0 winding up and (ii) a regular cash dividend that does not exceed $0.03 per share per quarter (the “Dividend Threshold Amount”)), the Conversion Rate shall be increased based on the following formula: CR = CR0 × SP0 – T SP0 – C where, CR0 = the number Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such distribution; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such distribution; SP0 = the average of the Closing Sale Prices of the Common Shares outstanding on Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date Ex-Dividend Date for such tender or exchange offer is announced OS' distribution; T = the number of Common Shares outstanding less any shares purchased in Dividend Threshold Amount; provided that if the tender dividend or exchange offer at the time such tender or exchange offer expires SP' = the Current Market Price of Common Shares on the Trading Day immediately preceding the date such tender or exchange offer distribution is announced. If the Company is obligated to repurchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescindednot a regular quarterly cash dividend, the Conversion Rate shall again Dividend Threshold Amount will be adjusted deemed to be the Conversion Rate that would then be in effect if such tender or exchange had not been made.
(f) For purposes of this Section 13.4, the following terms shall have the meaning indicated:zero; and
Appears in 1 contract
Conversion Rate Adjustments. The Conversion Rate shall be adjusted subject to adjustment from time to time by time, without duplication, upon the Company as follows, except that occurrence of any of the Company shall not make any adjustment if holders of Securities may participate, as a result of holding the Securities, in the transaction described without having to convert their Securities.following events:
(a) If the Company, at any time or from time to time while any Company issues solely shares of the Securities are outstanding, pays Common Stock as a dividend or make a distribution in Common Shares to on all holders or substantially all of its outstanding shares of Common SharesStock, or if the Company subdivides or combines its Common Shares then Stock, the Conversion Rate will shall be adjusted based on the following formula: CR = CR0 × OS OS0 where, CR0 = the Conversion Rate in effect immediately prior to such event CR' = the Conversion Rate in effect immediately after such event OS0 = the number Close of Common Shares outstanding immediately prior to such event OS' = the number of Common Shares outstanding immediately after such event Such adjustment shall become effective immediately after the opening of business Business on the day following the Record Date for such dividend or distribution, or immediately prior to the Open of Business on the effective date fixed for determination of such subdivision or combination of Common Stock, as the case may be; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such share split dividend or share combinationdistribution, or immediately after the Open of Business on the effective date of such subdivision or combination of Common Stock, as the case may be; OS0` = the number of shares of Common Stock outstanding immediately prior to the Close of Business on the Record Date for such dividend or distribution, or immediately prior to the Open of Business on the effective date of such subdivision or combination of Common Stock, as the case may be; and OS = the number of shares of Common Stock that would be outstanding immediately after giving effect to such dividend or distribution, or immediately after the effective date of such subdivision or combination of Common Stock, as the case may be. Any adjustment made under this Section 5.05(a) shall become effective immediately after the Close of Business on the Record Date for such dividend or distribution, or immediately after the Open of Business on the effective date of such subdivision or combination of Common Stock, as the case may be. If any dividend such dividend, distribution, subdivision or distribution of the type combination described in this Section 13.4(a5.05(a) is declared but not so paid or made, 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 to effect such subdivision or combination, to the Conversion Rate which that would then be in effect if such dividend or distribution had not been declareddeclared or subdivision or combination had not been announced.
(b) If the Company, at any time or from time to time while any of the Securities are outstanding, issues an Ex-Dividend Date occurs for a distribution to all or substantially all holders of its outstanding Common Shares certain rights Stock of any rights, options or warrants entitling such holders for a period of not more than 60 calendar days from the announcement date for such distribution to subscribe for or purchase shares of Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) Stock, at a price per share (or having a conversion, exchange or exercise price per share) less than the average of the Closing Sale Price Prices of the Common Shares on Stock for the Record Date 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for shareholders entitled to receive such rights and warrants, which rights or warrants are exercisable for not more than 60 daysdistribution, the Conversion Rate shall be adjusted increased based on the following formula (provided that the Conversion Rate shall be readjusted to the extent that such rights or warrants are not exercised prior to their expiration): formula: CR = CR0 × OS0 + X OS0 + Y where, CR0 = the Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such event CR' distribution; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such event distribution; OS0 = the number of shares of Common Shares Stock outstanding immediately prior to the Close of Business on the close of business on the next Business Day following such Record Date for such distribution; X = the total number of shares of Common Shares Stock issuable pursuant to such rights rights, options or warrants; and Y = the number of shares of Common Shares Stock equal to the aggregate offering price that payable to exercise such rights, options or warrants divided by the total number average of shares so offered would purchase at such the Closing Sale Price Prices of Common Shares on Stock over the Record Date of 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such issuance determined by multiplying distribution. Any increase made under this Section 5.05(b) shall be made successively whenever any such total number of shares so offered by the exercise price of such rights rights, options or warrants are issued and dividing the product so obtained by such Closing Sale Price. Such adjustment shall become effective immediately after the opening Close of business Business on the day following the date of announcement of Record Date for such issuancedistribution. To the extent that shares of Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) Stock are not delivered pursuant to such rights or warrants, upon after the expiration or termination exercise of such rights rights, options or warrants, the Conversion Rate shall be readjusted decreased to the Conversion Rate which that would then be in effect had the adjustments made upon increase with respect to the issuance of such rights rights, options or warrants been made on the basis of the delivery of only the number of shares of Common Shares (or securities convertible into or exchangeable or exercisable for Common Shares) Stock actually delivered. In the event that If such rights rights, options or warrants are not so issueddistributed, the Conversion Rate shall again be adjusted decreased to be the Conversion Rate which that would then be in effect if the date fixed Record Date for the determination of stockholders entitled to receive such rights or warrants distribution had not been fixedoccurred. In For purposes of this Section 5.05(b), in determining whether any rights rights, options or warrants entitle the holders Holders to subscribe for or purchase shares of Common Shares Stock at a price that is less than such the average of the Closing Sale Price, and in determining Prices of the aggregate offering price of such Common SharesStock over the applicable 10 consecutive Trading Day period, there shall be taken into account any consideration received the Company receives for such rights rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration, consideration if other than cash, cash to be determined in good faith by the Board of Directors Directors.
(A) If an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of shares of the Company’s capital stock, evidences of the Company’s indebtedness or other assets or property of the Company or rights, options or warrants to acquire the Company’s capital stock or other securities, to all or substantially all holders of the Common Stock (excluding (i) dividends or distributions and rights, options or warrants as to which an adjustment was effected under Section 5.05(a) or Section 5.05(b) above; (ii) dividends or distributions paid exclusively in cash covered under Section 5.05(d); and (iii) Spin-Offs), then the Conversion Rate shall be increased based on the following formula: CR = CR0 × XX0 XX0 – FMV where, CR0 = the Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such distribution; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such distribution; SP0 = the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined in good faith by the Board of Directors) of the shares of capital stock, evidences of indebtedness, assets or property or rights, options or warrants distributed with respect to each outstanding share of Common Stock as of the Open of Business on the Ex-Dividend Date for such distribution. Any increase made under the above portion of this Section 5.05(c) shall become effective immediately after the Close of Business on the Record Date for such distribution. No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if such distribution is not so paid or made, the Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common Stock, without having to convert its Notes, the amount and type of the Relevant Distribution that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the Record Date for the distribution. For the purposes of this Section 13.4(b5.05(c)(A) (and subject in all respects to Section 5.05(f)):
(1) Rights, rights options or warrants distributed by the Company to all or substantially all holders of its the Common Shares Stock entitling them to subscribe for or purchase shares of the Company's ’s capital stock stock, including Common Stock (either initially or under certain circumstances), which rights rights, options or warrants, until the occurrence of a specified event or events ("a “Trigger Event"): ”):
(1i) are deemed to be transferred with such shares of the Common Shares; Stock;
(2ii) are not exercisable; and and
(3iii) are also issued in respect of future issuances of the Common SharesStock, shall be deemed not to have been distributed for purposes of this Section 13.4(b5.05(c) (and no adjustment to the Conversion Price Rate under this Section 13.4(b5.05(c) will shall be required) until the occurrence of the earliest Trigger Event, whereupon such rights and rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 13.4(b5.05(c). .
(2) If any such right right, option or warrant, including any such existing rights rights, options or warrants distributed prior to the date of this IndentureIssue Date, are subject to events, upon the occurrence of which such rights rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date the Record Date with respect to new rights rights, options or warrants with such rights (and a termination or expiration of in which case the existing rights rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). .
(3) In addition, in the event of any distribution (or deemed distribution) of rights rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentenceclause (2) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 13.4(b5.05(c) was made, :
(1i) in the case of any such rights rights, options or warrants which that shall all have been redeemed or purchased repurchased without exercise by any Holders holders thereof, upon such final redemption or repurchase (x) the Conversion Rate shall be readjusted upon as if such final redemption rights, options or repurchase warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distributiondistribution pursuant to Section 5.05(d), equal to the per share redemption or purchase repurchase price received by a holder or holders of Common Shares Stock with respect to such rights rights, options or warrants (assuming such holder had retained such rights rights, options or warrants), made to all applicable holders of Common Shares Stock as of the date of such redemption or repurchase, and ; and
(2ii) in the case of such rights rights, options or warrants which that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights rights, options and warrants had not been issued.
(c4) If the CompanyFor purposes of Section 5.05(a), at Section 5.05(b) and this Section 5.05(c), if any time dividend or from time distribution to time while the Securities are outstanding, distributes to all which this Section 5.05(c) is applicable includes one or substantially all holders of its Common Shares, Common Shares of the Company, evidences of its indebtedness or assets, including securities, but excludingboth of:
(i) dividends a dividend or distributions referred distribution of shares of Common Stock to in which Section 13.4(a5.05(a) is applicable (the “Clause A Distribution”);; or
(ii) rights an issuance of rights, options or warrants referred to in which Section 13.4(b5.05(b) is applicable (the “Clause B Distribution”), then:
(1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 5.05(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 5.05(c) with respect to such Clause C Distribution shall then be made; and
(iii2) dividends or distributions referred the Clause A Distribution and Clause B Distribution shall be deemed to in Section 13.4(d); then immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Section 5.05(a) and Section 5.05(b) with respect thereto shall then be made, except that, if determined by the Company (I) the “Record Date” of the Clause A Distribution and the Clause B Distribution shall be adjusted based on deemed to be the following formula: where, CR0 = Record Date of the Conversion Rate Clause C Distribution and (II) any shares of Common Stock included in effect the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to such distribution CR' = the Conversion Rate in effect immediately after such distribution SP0 = the Current Market Price Close of Common Shares Business on the Record Date for such distribution FMV = the fair market value (as determined by the Board of Directors of the Company) of the Common Shares, evidences of indebtedness, assets or property distributed with respect to each outstanding Common Share on the Record Date for such distribution Such adjustment shall become effective immediately prior to the opening Open of business Business on such effective date” within the meaning of Section 5.05(a) or “outstanding immediately prior to the Close of Business on the day following Record Date” within the Record Date for such distribution. If the Board meaning of Directors of the Company determines the fair market value of any distribution for purposes of this Section 13.4(c5.05(b).
(B) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. To the extent that the Company has a rights plan in effect upon conversion of the Securities into Common Shares, a Holder shall receive, in addition to the Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of conversion, in which case the Conversion Rate will be adjusted as if the Company distributed to all holders of Common Shares, Common Shares, evidences of indebtedness or assets, subject to readjustment in the event of the expiration, termination or redemption of such rights. With respect to an adjustment pursuant to this Section 13.4(c5.05(c) where there has been a payment of an Ex-Dividend Date for a dividend or other distribution on the Common Shares or 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 unit, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a "“Spin-Off"”), the Conversion Rate in effect immediately before 5:00 p.m., New York City time, on the effective date fixed for determination of shareholders entitled to receive the distribution shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to such distribution CR' = the Conversion Rate in effect immediately after such distribution FMV0 = the average of the Closing Sale Prices of the Common Shares or similar equity interest distributed to holders of Common Shares applicable to one common share over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted MP0 = the average of the Closing Sale Prices of Common Shares over the ten consecutive Trading-Day period commencing on and including the fifth Trading Day after the date on which Ex-Dividend Trading commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted The adjustment to the Conversion Rate under the preceding paragraph will occur on the fourteenth Trading Day after the date on which "Ex-Dividend Trading" commences for such distribution on the NYSE Amex Equities or such other national or regional exchange or market on which the Securities are then listed or quoted.
(d) If any cash dividend or other distribution is made to all or substantially all holders of Common Shares, the Conversion Rate shall be adjusted based on the following formula: where, CR0 = the Conversion Rate in effect on the Record Date for such distribution CR' = the Conversion Rate in effect immediately after the Record Date for such distribution SP0 = the Current Market Price of one of the Common Shares on the Record Date for such distribution C = the amount in cash per share the Company distributes to holders of Common Shares. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Record Date for such dividend or distribution; provided that if such dividend or distribution is not paid or made, the Conversion Rate shall again be adjusted to be 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 offer or exchange offer for Common Shares to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the Current Market Price per Common Share on the Trading Day immediately preceding the date such tender offer or exchange offer is announced, the Conversion Rate shall be increased based on the following formula: CR = CR0 × FMV + MP0 MP0 where, CR0 = the Conversion Rate in effect immediately prior to the Close of Business on the date such tender or exchange offer expires CR' Record Date for the Spin-Off; CR = the Conversion Rate in effect immediately after the Close of Business on the day next succeeding Record Date for the date such tender or exchange offer expires AC Spin-Off; FMV = the fair market value average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock (as determined by reference to the Board definition of Directors“Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first 10 consecutive Trading Day period commencing on, and including, the effective date for the Spin-Off (such period, the “Valuation Period”); and MP0 = the average of the aggregate consideration paid Closing Sale Prices of the Common Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph of this Section 5.05(c) shall be determined on the last day of the Valuation Period but will be given effect immediately after the Close of Business on the Record Date for the Spin-Off. In respect of any conversion during the Valuation Period for any Spin-Off, references within this Section 5.05(c)(B) related to 10 Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the effective date for such Spin-Off to, but excluding, the relevant Conversion Date.
(d) If an Ex-Dividend Date occurs for a cash dividend or payable for shares purchased distribution to all or substantially all holders of the Common Stock (other than (i) any dividend or distribution in such tender connection with the Company’s liquidation, dissolution or exchange offer OS0 winding up and (ii) a regular cash dividend that does not exceed $0.03 per share per quarter (the “Dividend Threshold Amount”)), the Conversion Rate shall be increased based on the following formula: CR = CR0 × SP0 – T SP0 – C where, CR0 = the number Conversion Rate in effect immediately prior to the Close of Business on the Record Date for such distribution; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such distribution; SP0 = the average of the Closing Sale Prices of the Common Shares outstanding on Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date Ex-Dividend Date for such tender or exchange offer is announced OS' distribution; T = the number of Common Shares outstanding less any shares purchased in Dividend Threshold Amount; provided that if the tender dividend or exchange offer at the time such tender or exchange offer expires SP' = the Current Market Price of Common Shares on the Trading Day immediately preceding the date such tender or exchange offer distribution is announced. If the Company is obligated to repurchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescindednot a regular quarterly cash dividend, the Conversion Rate shall again Dividend Threshold Amount will be adjusted deemed to be the Conversion Rate that would then be in effect if such tender or exchange had not been made.
(f) For purposes of this Section 13.4, the following terms shall have the meaning indicated:zero; and
Appears in 1 contract
