Conversion Rate Adjustments. The Conversion Rate will be subject to adjustments from time to time, without duplication, upon the occurrence of any of the following events: (a) If the Company (i) issues solely shares of Common Stock as a dividend or distribution on its shares of Common Stock, (ii) subdivides Common Stock or (iii) combines Common Stock, the Conversion Rate will be calculated based on the following formula: CR = CR0 × OS OS0 where, CR0 = the Conversion Rate in effect 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; CR = the Conversion Rate in effect 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; 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 10.4(a) will 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 such dividend, distribution, subdivision or combination described in this Section 10.4(a) is declared but not so paid or made, the Conversion Rate will be immediately readjusted, effective as of the date the Company’s board of directors determines not to pay such dividend or distribution or to effect such subdivision or combination, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared or such subdivision or combination had not been announced. (b) If an Ex-Dividend Date occurs for a distribution to all or substantially all holders of Common Stock of any rights, options or warrants entitling such holders for a period of not more than sixty (60) calendar days from the announcement date for such distribution to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock), at a price per share less than the average of the Closing Sale Prices of the Common Stock for the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution, the Conversion Rate will be calculated based on the following 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 distribution; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such distribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Close of Business on the Record Date for such distribution; X = the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants divided by the average of the Closing Sale Prices of Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution. Any adjustment made under this Section 10.4(b) will be made successively whenever any such rights, options or warrants are issued and will become effective immediately after the Close of Business on the Record Date for such distribution. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants, including because the distributed rights, options or warrants were not exercised, the Conversion Rate will be decreased to the Conversion Rate that would then be in effect had the increase with respect to the distribution of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so distributed, the Conversion Rate will be decreased to the Conversion Rate that would then be in effect if the Ex-Dividend Date for such distribution had not occurred. For purposes of this Section 10.4(b), in determining whether any rights, options or warrants entitle the Purchaser to subscribe for or purchase shares of Common Stock at a price that is less than the average of the Closing Sale Prices of the Common Stock over the applicable ten (10) consecutive Trading Day period, there will be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration if other than cash to be determined in good faith by the Company’s board of directors. (i) 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, evidences of its indebtedness or other assets or property of the Company to all or substantially all holders of the Common Stock (excluding (A) dividends or distributions and rights, options or warrants as to which an adjustment was effected under Sections 10.4(a) or 10.4(b); (B) dividends or distributions paid exclusively in cash covered under Section 10.4(d); and (C) Spin-Offs), then the Conversion Rate will be calculated based on the following formula: CR = CR0 × ▇▇▇ ▇▇▇ – 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 ten (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 Company’s 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 adjustment made under the above portion of this Section 10.4(c) will 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 will 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, the Purchaser will 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 Bond, 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 purposes of this Section 10.4(c)(i) (and subject in all respects to Section 10.4(f)): (1) Rights, options or warrants distributed by the Company to all or substantially all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s capital stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (a) are deemed to be transferred with such shares of the Common Stock; (b) are not exercisable; and (c) are also issued in respect of future issuances of the Common Stock, will be deemed not to have been distributed for purposes of this Section 10.4(c) (and no adjustment to the Conversion Rate under this Section 10.4(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants will be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate will be made under this Section 10.4(c). (2) If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the Closing, are subject to events, upon the occurrence of which such 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 will be deemed to be the date of distribution and the Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants will 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, options or warrants, or any Trigger Event or other event of the type described in the immediately preceding clause (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 10.4(c) was made: (a) in the case of any such rights, options or warrants that will all have been redeemed or repurchased without exercise by any holders thereof, upon such final redemption or repurchase (x) the Conversion Rate will be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate will then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution pursuant to Section 10.4(d), equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase; and (b) in the case of such rights, options or warrants that have expired or been terminated without exercise by any holders thereof, the Conversion Rate will be readjusted as if such rights, options and warrants had not been issued. (4) For purposes of Sections 10.4(a), 10.4(b) and 10.4(c), if any dividend or distribution to which this Section 10.4(c) is applicable includes one or both of: (a) a dividend or distribution of shares of Common Stock to which Section 10.4(a) is applicable (the “Clause A Distribution”); or (b) an issuance of rights, options or warrants to which Section 10.4(b) is applicable (the “Clause B Distribution”), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2) the Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then be made, except that, if determined by the Company (A) the “Record Date” of the Clause A Distribution and the Clause B Distribution will be deemed to be the Record Date of the Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding immediately prior to the Close of Business on the Record Date or immediately prior to the Open of Business on such effective date” within the meaning of Section 10.4(a) or “outstanding immediately prior to the Close of Business on the Record Date” within the meaning of Section 10.4(b). (ii) With respect to an adjustment pursuant to this Section 10.4(c) where there has been an Ex-Dividend Date for a dividend or other distribution on the Common Stock of shares of capital stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit, that are, or, when issued, will be, listed or admitted for trading on a United States national securities exchange (a “Spin-Off”), the Conversion Rate will be calculated 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 Record Date for the Spin-Off; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for the Spin-Off; FMV = the 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 (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first ten (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 Closing Sale Prices of the Common Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph of this Section 10.4(c) will 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 10.4(c)(ii) related to ten (10) Trading Days will 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 distribution to all or substantially all holders of the Common Stock (other than any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up), the Conversion Rate will be recalculated based on the following formula: CR = CR0 × ▇▇▇ ▇▇▇ – C 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 ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and C = the amount in cash per share of Common Stock the Company pays, or distributes, to all or substantially all holders of the Common Stock. Any adjustment made under this Section 10.4(d) will become effective immediately after the Close of Business on the Record Date for such dividend or distribution. No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if any dividend or distribution described in this Section 10.4(d) is declared but not so paid or made, the Conversion Rate will 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 “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, the Purchaser will receive, for each $1,000 principal amount of the Bond, at the sam

Appears in 2 contracts

Sources: Bond Purchase Agreement (Sprint Nextel Corp), Bond Purchase Agreement (Starburst II, Inc.)

Conversion Rate Adjustments. The Conversion Rate ~~will~~ shall be ~~subject to adjustments~~ adjusted from time to ~~time~~time by the Company as follows, except that the Company shall not make any adjustment to the Conversion Rate if Holders may participate, as a result of holding the Securities, in the transaction described below without ~~duplication, upon the occurrence of any of the following events:~~having to convert their Securities. (a) If the ~~Company (i) issues solely shares~~ Company, at any time or from time to time while any of ~~Common Stock as~~ the Securities are outstanding, pays a dividend or makes a distribution on in Common Shares to all holders of its ~~shares of~~ outstanding Common ~~Stock~~Shares, ~~(ii)~~ or if the Company subdivides or combines its Common ~~Stock or (iii) combines Common Stock~~Shares, then the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: ~~CR = CR0 × OS OS0~~ where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ Ex-Dividend Date of such dividend or distribution or the effective date of such subdivision or combination, as applicable CR' = the Conversion Rate in effect immediately after such Ex-Dividend Date or effective date, as applicable OS0 = the number of Common Shares outstanding immediately prior to such 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 dividend, distribution, subdivision or combination Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Business on Day following the Record Date for such dividend or distribution, or ~~immediately prior to~~ the ~~Open of Business on the effective~~ date of fixed for determination for such Common Share 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~~ combination. If any dividend or ~~distribution, or immediately after~~ distribution of 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 10.4(a) will 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 such dividend, distribution, subdivision or combination type described in this Section ~~10.4(a~~13.04(a) is declared but not so paid or made, the Conversion Rate ~~will~~ shall again be ~~immediately readjusted, effective as of the date the Company’s board of directors determines not to pay such dividend or distribution or to effect such subdivision or combination,~~ adjusted to the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been ~~declared or such subdivision or combination had not been announced~~declared. (b) If ~~an Ex-Dividend Date occurs for a distribution~~ the Company, at any time or from time to time while any of the Securities are outstanding, distributes to holders of all or substantially all ~~holders~~ of its outstanding Common ~~Stock of any rights, options~~ Shares certain rights or warrants ~~entitling such holders for a period of not more than sixty (60) calendar days from the announcement date for such distribution~~ to ~~subscribe for or~~ purchase ~~shares of~~ Common ~~Stock (or securities convertible into Common Stock),~~ Shares at a price per ~~share~~ Common Share less than the ~~average of the~~ Closing Sale ~~Prices~~ Price of the Common ~~Stock~~ Shares on the Record Date for ~~the ten (10) consecutive Trading Day period ending on~~shareholders entitled to receive such rights and warrants, ~~and including, the Trading Day immediately preceding the announcement date~~ which rights or warrants are exercisable for ~~such distribution~~not more than 60 days, the Conversion Rate ~~will~~ shall be ~~calculated~~ adjusted based on the following ~~formula: CR = CR0 × OS0 + X OS0 + Y~~ 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 ~~Close~~ Ex-Dividend Date of ~~Business on the Record Date for~~ such ~~distribution; CR~~ distribution CR' = the Conversion Rate in effect immediately after ~~the Close of Business on the Record~~ such Ex-Dividend Date ~~for such distribution;~~ OS0 = the number of ~~shares of~~ Common ~~Stock~~ Shares outstanding immediately ~~prior to the Close of Business on the Record~~ after such Ex-Dividend Date ~~for such distribution;~~ X = the total number of ~~shares of~~ Common ~~Stock~~ Shares issuable pursuant to such ~~rights, options~~ rights or ~~warrants; and~~ warrants Y = the number of ~~shares of~~ Common ~~Stock~~ Shares equal to the quotient of (a) the aggregate price payable to exercise all such ~~rights, options~~ rights or warrants ~~divided by~~ and (b) the average of the Closing Sale ~~Prices~~ Price of the Common ~~Stock over~~ Shares for the ~~ten (10)~~ 10 consecutive Trading ~~Day period~~ Days ending ~~on, and including,~~ on the Trading Day immediately preceding the date of announcement ~~date~~ for the issuance of such ~~distribution. Any adjustment made under this Section 10.4(b) will be made successively whenever any such rights, options~~ rights or warrants ~~are issued and will~~ Such adjustment shall become effective immediately after ~~the Close of Business~~ 9:00 a.m., New York City time, on the ~~Record Date for~~ Business Day following the date of announcement of the issuance of such ~~distribution~~rights or warrants. To the extent that ~~shares of~~ Common ~~Stock~~ Shares are not delivered ~~after the expiration of~~ pursuant to such ~~rights, options~~ rights or warrants, ~~including because~~ upon the ~~distributed rights, options~~ expiration or ~~warrants were not exercised~~termination of such rights or warrants, the Conversion Rate ~~will~~ shall be ~~decreased~~ readjusted to the Conversion Rate ~~that~~ which would then be in effect had the ~~increase with respect to~~ adjustments made upon the ~~distribution~~ issuance of such ~~rights, options~~ rights or warrants been made on the basis of the delivery of only the number of ~~shares of~~ Common ~~Stock~~ Shares actually delivered. If In the event that such ~~rights, options~~ rights or warrants are not so ~~distributed~~issued, the Conversion Rate ~~will~~ shall again be ~~decreased~~ adjusted to be the Conversion Rate ~~that~~ which would then be in effect if the ~~Ex-Dividend Date~~ date fixed for the determination of shareholders entitled to receive such ~~distribution~~ rights or warrants had not ~~occurred~~been fixed. ~~For purposes of this Section 10.4(b), in~~ In determining whether any ~~rights, options~~ rights or warrants entitle the ~~Purchaser~~ holders to subscribe for or purchase ~~shares of~~ Common ~~Stock~~ Shares at ~~a price that is~~ less than ~~the average of the~~ such Closing Sale ~~Prices~~ Price, and in determining the aggregate offering price of ~~the~~ such Common ~~Stock over the applicable ten (10) consecutive Trading Day period~~Shares, there ~~will~~ shall be taken into account any consideration ~~the Company receives~~ received for such ~~rights, options~~ rights or warrants 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 ~~Company’s board~~ Board of ~~directors. (i) If an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of shares~~ Directors 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, evidences of its indebtedness or other assets or property of the Company to all or substantially all holders of the Common Stock (excluding (A) dividends or distributions and rights, options or warrants as to which an adjustment was effected under Sections 10.4(a) or 10.4(b); (B) dividends or distributions paid exclusively in cash covered under Section 10.4(d); and (C) Spin-Offs), then the Conversion Rate will be calculated based on the following formula: CR = CR0 × ▇▇▇ ▇▇▇ – 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 ten (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 Company’s 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 adjustment made under the above portion of this Section 10.4(c) will 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 will 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, the Purchaser will 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 Bond, 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 ~~10.4(c)(i) (and subject in all respects to Section 10.4(f~~13.04(c)~~): (1) Rights~~, ~~options~~ rights or warrants distributed by the Company to all ~~or substantially all~~ holders of the Common ~~Stock~~ Shares entitling them to subscribe for or purchase shares of the Company’s ~~capital stock, including Common~~ Capital Stock (either initially or under certain circumstances), which ~~rights, options~~ rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): ): (ai) are deemed to be transferred with such ~~shares of the~~ Common ~~Stock;~~ Shares; (bii) are not exercisable; ~~and~~ and (ciii) are also issued in respect of future issuances of ~~the~~ Common ~~Stock~~Shares, ~~will~~ shall be deemed not to have been distributed for purposes of this Section ~~10.4(c~~13.04(c) (and no adjustment to the Conversion ~~Rate~~ Price under this Section ~~10.4(c~~13.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such ~~rights, options or~~ rights and warrants ~~will~~ shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate ~~will~~ shall be made under this Section ~~10.4(c~~13.04(c)~~. (2)~~ . If any such ~~right, option~~ right or warrant, including any such existing ~~rights, options~~ rights or warrants distributed prior to the ~~Closing~~date of this Indenture, are subject to events, upon the occurrence of which such ~~rights, options~~ 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 ~~will~~ shall be deemed to be the date of distribution and ~~the Record Date~~ record date with respect to new ~~rights, options~~ rights or warrants with such rights (~~in which case~~ and a termination or expiration of the existing ~~rights, options~~ rights or warrants ~~will 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, options~~ rights or warrants, or any Trigger Event or other event (of the type described in the ~~immediately~~ preceding ~~clause (2~~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 ~~10.4(c~~13.04(c) was made: , (aA) in the case of any such ~~rights, options~~ rights or warrants ~~that will~~ which shall all have been redeemed or ~~repurchased~~ purchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase ~~(x) the Conversion Rate will be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate will then again be readjusted~~ to give effect to such ~~distribution, deemed~~ distribution or Trigger Event, as the case may be, as though it were a cash ~~distribution pursuant to Section 10.4(d)~~distribution, equal to the per share redemption or ~~repurchase~~ purchase price received by a holder ~~or holders~~ of Common ~~Stock~~ Shares with respect to such ~~rights, options~~ rights or warrants (assuming such holder had retained such ~~rights, options~~ rights or warrants), made to all applicable holders of Common ~~Stock~~ Shares as of the date of such redemption or repurchase~~; and~~ , and (bB) in the case of such ~~rights, options~~ rights or warrants ~~that~~ which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate ~~will~~ shall be readjusted as if such ~~rights, options~~ rights and warrants had not been issued. (4c) ~~For purposes~~ If the Company, at any time or from time to time while the Securities are outstanding, distributes to holders of ~~Sections 10.4(a)~~all or substantially of the Common Shares, ~~10.4(b) and 10.4(c)~~Common Shares, ~~if any dividend~~ evidences of indebtedness or ~~distribution to which this Section 10.4(c) is applicable includes one~~ assets or ~~both of~~property, including securities, but excluding: (ai) ~~a dividend~~ dividends or ~~distribution of shares of Common Stock~~ distributions referred to ~~which~~ in Section ~~10.4(a) is applicable (the “Clause A Distribution”~~13.04(a)~~; or~~; (bii) ~~an issuance of rights, options~~ rights or warrants referred to ~~which~~ in Section ~~10.4(b) is applicable (the “Clause B Distribution”~~13.04(c), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2iii) dividends or distributions paid exclusively in cash; then the ~~Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any~~ Conversion Rate ~~adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then~~ shall be ~~made~~adjusted based on the following formula: where, ~~except that, if determined by~~ CR0 = the Company (A) the “Record Date” of the Clause A Distribution and the Clause B Distribution will be deemed to be the Record Date of the Clause C Distribution and (B) any shares of Common Stock included Conversion Rate in ~~the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding~~ effect immediately prior to the ~~Close~~ Ex-Dividend Date for such distribution CR' = the Conversion Rate in effect immediately after such Ex-Dividend Date SP0 = the Current Market Price of ~~Business~~ the Common Shares on the Trading Day immediately preceding such Ex-Dividend Date 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 or for such distribution Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the ~~Open~~ Business Day following the Record Date for such distribution. If the Board of ~~Business on such effective date” within~~ Directors of the ~~meaning~~ Company determines the fair market value of any distribution for purposes of this Section ~~10.4(a~~13.04(c) ~~or “outstanding immediately prior~~ by reference to the ~~Close~~ 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 ~~Business on~~ the ~~Record Date” within~~ Common Shares. To the ~~meaning~~ 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 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 assets or property as described in this Section ~~10.4(b~~13.04(c)~~. (ii)~~ , subject to readjustment in the event of the expiration, termination or redemption of such rights. With respect to an adjustment pursuant to this Section ~~10.4(c~~13.04(c) where there has been ~~an Ex-Dividend Date for~~ a payment of a dividend or other distribution on the Common ~~Stock of~~ Shares or common shares ~~of capital stock~~ of any class or series, or similar equity interest, of or relating to a Subsidiary or other business ~~unit, that are, or, when issued, will be, listed or admitted for trading on a United States national securities exchange~~ unit (a “Spin-Off”), the Conversion Rate in effect immediately before 5:00 p.m., New York City time, on the effective date of the Spin-Off shall be increased based on the following formula in lieu of the formula above: where, CR0 = the Conversion Rate in effect immediately prior to 5:00 p.m., New York City time, on the effective date of the Spin-Off CR' = the Conversion Rate in effect immediately after 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 over the 10 consecutive Trading-Day period commencing on, and including, the effective date of the Spin-Off MP0 = the average of the Closing Sale Prices of the Common Shares over the 10 consecutive Trading-Day period commencing on, and including, the effective date of the Spin-Off The adjustment to the Conversion Rate under the preceding paragraph will occur on the 10th Trading Day from, and including, the effective date of the Spin-Off and shall be ~~calculated~~ 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: ~~CR = CR0 × FMV + MP0 MP0~~ where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close of Business on the Record~~ Ex-Dividend Date for ~~the Spin-Off; CR~~ such dividend or distribution CR' = the Conversion Rate in effect immediately after such Ex-Dividend Date SP0 = the ~~Close~~ Current Market Price of ~~Business~~ the Common Shares on the ~~Record~~ Trading Day immediately preceding such Ex-Dividend Date ~~for the Spin-Off; FMV~~ C = the ~~average of~~ amount in cash per share the ~~Closing Sale Prices of the capital stock or similar equity interest distributed~~ Company distributes to holders of Common ~~Stock applicable~~ Shares in excess of the Initial Dividend Threshold The Initial Dividend Threshold is subject to ~~one share of Common Stock (determined by reference~~ adjustment in a manner inversely proportional to adjustments to the ~~definition of “Closing Sale Price” as if references therein~~ Conversion Rate; provided, that no adjustment will be made to ~~Common Stock were to such capital stock or similar equity interest) over~~ the ~~first ten (10) consecutive Trading Day period commencing on, and including, the effective date~~ dividend threshold amount for ~~the Spin-Off (such period, the “Valuation Period”); and MP0 = the average of the Closing Sale Prices of the Common Stock over the Valuation Period. The~~ any adjustment made to the Conversion Rate under ~~the preceding paragraph of~~ this Section 10.4(c) will 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 13.04(d)(i)or Section 10.4(c)(ii) related to ten (10) Trading Days will 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 Date13.04(d)(ii). (dii) If ~~an Ex-Dividend Date occurs for a~~ any cash dividend or distribution that is not a regular, quarterly cash dividend or distribution is made to all or substantially all holders of ~~the~~ Common ~~Stock (other than any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up)~~Shares, the Conversion Rate ~~will~~ shall be ~~recalculated~~ adjusted based on the following formula: ~~CR = CR0 × ▇▇▇ ▇▇▇ – C~~ where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close of Business on the Record~~ Ex-Dividend Date for such ~~distribution; CR~~ 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 Trading Day immediately preceding such Ex-Dividend Date C = the amount in cash per share the Company distributes to holders of Common Shares (e) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the Common Shares, to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the Closing Sale Price of the Common Shares on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the effective date of the adjustment CR' = the Conversion Rate in effect immediately after the ~~Close~~ effective date of ~~Business~~ the adjustment AC = the fair market value (as determined by the Board of Directors) of the aggregate consideration paid or payable for shares accepted for purchase or exchange in such tender or exchange offer OS0 = the number of Common Shares outstanding on the ~~Record Date for~~ Trading Day immediately preceding the date such ~~distribution; SP0~~ tender or exchange offer expires OS' = the ~~average~~ number of Common Shares outstanding less any Common Shares accepted for purchase or exchange in the ~~Closing Sale Prices~~ tender or exchange offer at the time such tender or exchange offer expires SP' = the Current Market Price of the Common ~~Stock over~~ Shares on the ~~ten (10) consecutive~~ Trading Day ~~period ending on~~next succeeding the date such tender or exchange offer expires 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 ~~immediately preceding~~ next succeeding the ~~Ex-Dividend Date for~~ date such ~~distribution~~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; ~~and C = the amount~~ provided that in ~~cash per share~~ respect of Common Stock the Company pays, or distributes, to all or substantially all holders of the Common Stock. Any adjustment made under this Section 10.4(d) will become effective immediately after the Close of Business on the Record Date for such dividend or distribution. No adjustment pursuant any conversion occurring prior to the ~~above formula will result~~ 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 ~~a decrease of~~ determining the applicable Conversion Rate. ~~However~~If the Company is obligated to repurchase shares pursuant to any such tender or exchange offer, if but the Company is permanently prevented by applicable law from effecting any ~~dividend~~ such purchases or ~~distribution described in this Section 10.4(d) is declared but not so paid or made~~all such purchases are rescinded, the Conversion Rate ~~will~~ shall again be ~~readjusted~~ adjusted to be the Conversion Rate that would then be in effect if such ~~dividend~~ tender or ~~distribution~~ exchange had not been ~~declared. Notwithstanding the foregoing, if “C”~~ made. (~~as defined above~~f) ~~is equal to or greater than “SP0” (as defined above), in lieu~~ For purposes of ~~the foregoing increase~~this Section 13.04, the ~~Purchaser will receive, for each $1,000 principal amount of~~ following terms shall have the ~~Bond, at the sam~~meaning indicated:

Appears in 2 contracts

Sources: Indenture (Biovail Corp International), Indenture (Biovail Corp International)

Conversion Rate Adjustments. The Conversion Rate ~~will~~ shall be subject to ~~adjustments~~ adjustment from time to time, without duplication, upon the occurrence of any of the following events: (a) If the Company ~~(i)~~ issues solely shares of Common Stock as a dividend or distribution on all or substantially all of its shares of Common Stock, ~~(ii)~~ or if the Company subdivides ~~Common Stock~~ or ~~(iii)~~ combines Common Stock, the Conversion Rate ~~will~~ shall be ~~calculated~~ adjusted based on the following formula: CR = CR0 × OS OS0 where, CR0 = the Conversion Rate in effect 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; CR = the Conversion Rate in effect 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; ~~OS0~~ 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 ~~10.4(a~~5.05(a) ~~will~~ 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 such dividend, distribution, subdivision or combination described in this Section ~~10.4(a~~5.05(a) is declared but not so paid or made, the Conversion Rate ~~will~~ shall be immediately readjusted, effective as of the date the ~~Company’s board~~ Board of ~~directors~~ Directors determines not to pay such dividend or distribution or to effect such subdivision or combination, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared or ~~such~~ subdivision or combination had not been announced. (b) If an Ex-Dividend Date occurs for a distribution to all or substantially all holders of Common Stock of any rights, options or warrants entitling such holders for a period of not more than ~~sixty (60)~~ 60 calendar days from the announcement date for such distribution to subscribe for or purchase shares of Common ~~Stock (or securities convertible into Common~~ Stock), at a price per share less than the average of the Closing Sale Prices of the Common Stock for the ~~ten (10)~~ 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution, the Conversion Rate ~~will~~ shall be ~~calculated~~ increased based on the following 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 distribution; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such distribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Close of Business on the Record Date for such distribution; X = the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants divided by the average of the Closing Sale Prices of Common Stock over the ~~ten (10)~~ 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution. Any ~~adjustment~~ increase made under this Section ~~10.4(b~~5.05(b) ~~will~~ shall be made successively whenever any such rights, options or warrants are issued and ~~will~~ shall become effective immediately after the Close of Business on the Record Date for such distribution. To the extent that shares of Common Stock are not delivered after the ~~expiration~~ exercise of such rights, options or warrants, ~~including because the distributed rights, options or warrants were not exercised,~~ the Conversion Rate ~~will~~ shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the ~~distribution~~ issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so distributed, the Conversion Rate ~~will~~ shall be decreased to the Conversion Rate that would then be in effect if the ~~Ex-Dividend~~ Record Date for such distribution had not occurred. For purposes of this Section ~~10.4(b~~5.05(b), in determining whether any rights, options or warrants entitle the ~~Purchaser~~ Holders to subscribe for or purchase shares of Common Stock at a price that is less than the average of the Closing Sale Prices of the Common Stock over the applicable ~~ten (10)~~ 10 consecutive Trading Day period, there ~~will~~ shall be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration if other than cash to be determined in good faith by the ~~Company’s board~~ Board of ~~directors~~Directors. (iA) 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, ~~evidences of its indebtedness or other assets or property of the Company~~ to all or substantially all holders of the Common Stock (excluding (Ai) dividends or distributions and rights, options or warrants as to which an adjustment was effected under ~~Sections 10.4(a~~Section 5.05(a) or ~~10.4(b)~~Section 5.05(b) above; (Bii) dividends or distributions paid exclusively in cash covered under Section ~~10.4(d~~5.05(d); and (Ciii) Spin-Offs), then the Conversion Rate ~~will~~ shall be ~~calculated~~ increased based on the following formula: CR = CR0 × ▇▇▇ ▇▇▇ – 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 ~~ten (10)~~ 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 ~~Company’s board~~ Board of ~~directors~~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 ~~adjustment~~ increase made under the above portion of this Section ~~10.4(c~~5.05(c) ~~will~~ 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 ~~will~~ 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, ~~the Purchaser will~~ 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 ~~Bond~~Notes, the amount and kind of the Relevant Distribution that such ~~holder~~ Holder would have received if such ~~holder~~ Holder owned a number of shares of Common Stock equal to the Conversion Rate on the Record Date for the distribution. For purposes of this Section ~~10.4(c)(i~~5.05(c)(A) (and subject in all respects to Section ~~10.4(f~~5.05(f)): (1) Rights, options or warrants distributed by the Company to all or substantially all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s capital stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (ai) are deemed to be transferred with such shares of the Common Stock; (bii) are not exercisable; and (ciii) are also issued in respect of future issuances of the Common Stock, ~~will~~ shall be deemed not to have been distributed for purposes of this Section ~~10.4(c~~5.05(c) (and no adjustment to the Conversion Rate under this Section ~~10.4(c~~5.05(c) ~~will~~ shall be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants ~~will~~ shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate ~~will~~ shall be made under this Section ~~10.4(c~~5.05(c). (2) If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the ~~Closing~~Issue Date, are subject to events, upon the occurrence of which such 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 ~~will~~ shall be deemed to be the date of distribution and the Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants ~~will~~ 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, options or warrants, or any Trigger Event or other event of the type described in the immediately preceding clause (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 ~~10.4(c~~5.05(c) was made: (ai) in the case of any such rights, options or warrants that ~~will~~ shall all have been redeemed or repurchased without exercise by any holders thereof, upon such final redemption or repurchase (x) the Conversion Rate ~~will~~ shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate ~~will~~ shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution pursuant to Section ~~10.4(d~~5.05(d), equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase; and (bii) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate ~~will~~ shall be readjusted as if such rights, options and warrants had not been issued. (4) For purposes of ~~Sections 10.4(a~~Section 5.05(a), ~~10.4(b~~Section 5.05(b) and ~~10.4(c~~this Section 5.05(c), if any dividend or distribution to which this Section ~~10.4(c~~5.05(c) is applicable includes one or both of: (ai) a dividend or distribution of shares of Common Stock to which Section ~~10.4(a~~5.05(a) is applicable (the “Clause A Distribution”); or (bii) an issuance of rights, options or warrants to which Section ~~10.4(b~~5.05(b) is applicable (the “Clause B Distribution”), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, ~~will~~ shall be deemed to be a dividend or distribution to which this Section ~~10.4(c~~5.05(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section ~~10.4(c~~5.05(c) with respect to such Clause C Distribution ~~will~~ shall then be made; and (2) the Clause A Distribution and Clause B Distribution ~~will~~ shall be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by ~~Sections 10.4(a~~Section 5.05(a) and ~~10.4(b~~Section 5.05(b) with respect thereto ~~will~~ shall then be made, except that, if determined by the Company (AI) the “Record Date” of the Clause A Distribution and the Clause B Distribution ~~will~~ shall be deemed to be the Record Date of the Clause C Distribution and (BII) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution ~~will~~ shall be deemed not to be “outstanding immediately prior to the Close of Business on the Record Date or immediately prior to the Open of Business on such effective date” within the meaning of Section ~~10.4(a~~5.05(a) or “outstanding immediately prior to the Close of Business on the Record Date” within the meaning of Section ~~10.4(b~~5.05(b). (iiB) With respect to an adjustment pursuant to this Section ~~10.4(c~~5.05(c) where there has been an Ex-Dividend Date for a dividend or other distribution on the Common Stock of shares of capital stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit, that are, or, when issued, will be, listed or admitted for trading on a ~~United States~~ U.S. national securities exchange (a “Spin-Off”), the Conversion Rate ~~will~~ shall be ~~calculated~~ 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 Record Date for the Spin-Off; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for the Spin-Off; FMV = the 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 (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first ~~ten (10)~~ 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 Closing Sale Prices of the Common Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph of this Section ~~10.4(c~~5.05(c) ~~will~~ 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 ~~10.4(c)(ii~~5.05(c)(B) related to ~~ten (10)~~ 10 Trading Days ~~will~~ 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 distribution to all or substantially all holders of the Common Stock (other than (i) any dividend or distribution in connection with the Company’s liquidation, dissolution or winding upup and (ii) a regular cash dividend that does not exceed $0.03 per share per quarter (the “Dividend Threshold Amount”)), the Conversion Rate ~~will~~ shall be ~~recalculated~~ increased based on the following formula: CR = CR0 × ~~▇▇▇ ▇▇▇~~ SP0 – T SP0 – C 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 ~~ten (10)~~ 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; ~~and C~~ T = the ~~amount in cash per share of Common Stock~~ Dividend Threshold Amount; provided that if the Company pays, or distributes, to all or substantially all holders of the Common Stock. Any adjustment made under this Section 10.4(d) will become effective immediately after the Close of Business on the Record Date for such dividend or distribution. No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if any dividend or distribution ~~described in this Section 10.4(d)~~ is ~~declared but~~ not ~~so paid or made~~a regular quarterly cash dividend, the ~~Conversion Rate~~ Dividend Threshold Amount will be ~~readjusted~~ deemed to ~~the Conversion Rate that would then~~ be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, the Purchaser will receive, for each $1,000 principal amount of the Bond, at the samzero; and

Appears in 1 contract

Sources: Seventh Supplemental Indenture (Ryland Group Inc)

Conversion Rate Adjustments. The Conversion Rate ~~will~~ shall be ~~subject to adjustments~~ adjusted from time to ~~time, without duplication, upon the occurrence of any of the following events~~time as follows: (a) If the Company ~~(i)~~ issues ~~solely shares of~~ Company Common Stock as a dividend or distribution on ~~its shares of Common Stock, (ii) subdivides~~ Company Common Stock to all holders of Company Common Stock , or ~~(iii) combines Common Stock~~if the Company effects a share split or share combination, the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: CR CR1 = CR0 ~~× OS~~ x OS1/OS0 ~~where,~~ where CR0 = the Conversion Rate in effect immediately prior to the ~~Close of Business on the Record~~ Ex-Dividend Date for such dividend or distribution, or ~~immediately prior to the Open of Business on~~ the effective date of such ~~subdivision~~ share split or ~~combination of Common Stock, as the case may be~~share combination; CR CR1 = the new Conversion Rate in effect immediately after the ~~Close of Business on the Record~~ Ex-Dividend Date for such dividend or distribution, or ~~immediately after the Open of Business on~~ the effective date of such ~~subdivision~~ share split or ~~combination of Common Stock, as the case may be~~share combination; OS0 = the number of shares of Company Common Stock outstanding immediately prior to the ~~Close of Business on the Record~~ Ex-Dividend Date for such dividend or distribution, or ~~immediately prior to the Open of Business on~~ the effective date of such ~~subdivision~~ share split or ~~combination of Common Stock, as the case may be~~share combination; and OS OS1 = the number of shares of Company 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 10.4(a) will become effective immediately after the Close of Business on the Record Ex-Dividend Date for such dividend or distribution, or ~~immediately after the Open of Business on~~ the effective date of such ~~subdivision~~ share split or share combination. Any adjustment made pursuant to this paragraph (a) shall become effective on the date that is immediately after (x) the date fixed for the determination of stockholders entitled to receive such dividend or other distribution or (y) the date on which such split or combination ~~of Common Stock~~becomes effective, as ~~the case may be~~applicable. If ~~such dividend, distribution, subdivision~~ any dividend or ~~combination~~ distribution described in this ~~Section 10.4(a~~paragraph (a) is declared but not so paid or made, the new Conversion Rate ~~will~~ shall be ~~immediately readjusted, effective as of the date the Company’s board of directors determines not to pay such dividend or distribution or to effect such subdivision or combination,~~ readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been ~~declared or such subdivision or combination had not been announced~~declared. (b) If ~~an Ex-Dividend Date occurs for a distribution~~ the Company issues to ~~all or substantially~~ all holders of shares of Company Common Stock of any rights, warrants, options or ~~warrants~~ other securities entitling ~~such holders~~ them for a period of not more than ~~sixty (60) calendar~~ 45 days ~~from~~ after the ~~announcement~~ date ~~for such distribution~~ of issuance thereof to subscribe for or purchase ~~shares of~~ Company Common Stock (, or issues to all holders of Company Common Stock securities convertible into Company Common ~~Stock)~~Stock for a period of not more than 45 days after the date of issuance thereof, in either case at a an exercise price per ~~share~~ Company Common Share or a conversion price per Company Common Share less than the ~~average of the~~ Closing Sale ~~Prices~~ Price of ~~the~~ Company Common Stock ~~for~~ on the ~~ten (10) consecutive Trading Day period ending on, and including, the Trading~~ Business Day immediately preceding the time of announcement ~~date for~~ of such ~~distribution~~issuance, the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: CR CR1 = CR0 ~~× OS0 + X OS0 + Y where,~~ x (OS0+X)/(OS0+Y) where CR0 = the Conversion Rate in effect immediately prior to the ~~Close of Business on the Record~~ Ex-Dividend Date for such distribution; CR CR1 = the new Conversion Rate in effect immediately after the ~~Close of Business on the Record~~ Ex-Dividend Date for such distribution; OS0 = the number of shares of Company Common Stock outstanding immediately prior to the ~~Close of Business on the Record~~ Ex-Dividend Date for such distribution; X = the total number of shares of Company Common Stock issuable pursuant to such rights, ~~options~~ warrants, options, other securities or ~~warrants~~convertible securities; and Y = the number of shares of Company Common Stock equal to the quotient of (A) the aggregate price payable to exercise such rights, ~~options~~ warrants, options, other securities or ~~warrants divided by~~ convertible securities and (B) the average of the Closing Sale Prices of Company Common Stock ~~over~~ for the ~~ten (10)~~ 10 consecutive Trading ~~Day period~~ Days ending ~~on, and including,~~ on the ~~Trading~~ Business Day immediately preceding the date of announcement ~~date~~ for ~~such distribution. Any adjustment made under this Section 10.4(b) will be made successively whenever any such rights, options or warrants are issued and will become effective immediately after~~ the ~~Close of Business on the Record Date for such distribution. To the extent that shares of Common Stock are not delivered after the expiration~~ issuance of such rights, ~~options or~~ warrants, ~~including because the distributed~~ options, other securities or convertible securities. For purposes of this paragraph (b), in determining whether any rights, ~~options~~ warrants, options, other securities or ~~warrants were not exercised~~convertible securities entitle the holders to subscribe for or purchase, or exercise a conversion right for, Company Common Stock at less than the ~~Conversion Rate will~~ applicable Closing Sale Price per Company Common Share, and in determining the aggregate exercise or conversion price payable for such Company Common Stock , there shall be ~~decreased to~~ taken into account any consideration received by the ~~Conversion Rate that would then be in effect had the increase with respect to the distribution of~~ Company for such rights, ~~options~~ warrants, options, other securities or ~~warrants been made~~ convertible securities and any amount payable on exercise or conversion thereof, with the ~~basis~~ value of ~~delivery~~ such consideration, if other than cash, to be determined by the Board of ~~only~~ Directors of the ~~number of shares of Common Stock actually delivered~~Company. If ~~such rights~~any right, ~~options~~ warrant, option, other security or ~~warrants are~~ convertible security described in this paragraph (b) is not ~~so distributed~~exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Conversion Rate ~~will~~ shall be ~~decreased~~ readjusted to the Conversion Rate that would then be in effect if ~~the Ex-Dividend Date for~~ such ~~distribution~~ right, warrant, option, other security or convertible security had not occurred. For purposes of this Section 10.4(b), in determining whether any rights, options or warrants entitle the Purchaser to subscribe for or purchase shares of Common Stock at a price that is less than the average of the Closing Sale Prices of the Common Stock over the applicable ten (10) consecutive Trading Day period, there will be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration if other than cash to be determined in good faith by the Company’s board of directorsbeen so issued. (ic) If ~~an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of~~ the Company distributes 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, evidences of its~~ indebtedness or other assets or property of the Company to all ~~or substantially all~~ holders of ~~the~~ Company Common ~~Stock~~ Stock, excluding: (~~excluding (A~~i) ~~dividends or distributions and~~ dividends, distributions, rights, ~~options~~ warrants, options, other securities or ~~warrants as~~ convertible securities referred to ~~which an adjustment was effected under Sections 10.4(a~~in paragraph (a) or ~~10.4(b);~~ (Bb) above; (ii) dividends or distributions paid exclusively in ~~cash covered under Section 10.4(d)~~cash; ~~and~~ and (Ciii) Spin-~~Offs~~Offs described below in this paragraph (c), then the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: CR CR1 = CR0 ~~× ▇▇▇ ▇▇▇ – FMV where,~~ x SP0/(SP0-FMV) where CR0 = the Conversion Rate in effect immediately prior to the ~~Close of Business on the Record~~ Ex-Dividend Date for such distribution; CR CR1 = the new Conversion Rate in effect immediately after the ~~Close of Business on the Record~~ Ex-Dividend Date for such distribution; SP0 = the average of the Closing Sale Prices of ~~the~~ Company Common Stock ~~over~~ for the ~~ten (10)~~ 10 consecutive Trading ~~Day period ending on, and including,~~ Days prior to the ~~Trading~~ Business Day immediately preceding the earlier of the record date or 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 Company~~’s 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~~ Company Common ~~Stock as~~ Share on the earlier of the ~~Open of Business on~~ record date or the Exex-~~Dividend Date~~ dividend date for such distribution. Any adjustment made under the above portion of this Section 10.4(c) will 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 will 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, the Purchaser will 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 Bond, 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 purposes of this Section 10.4(c)(i) (and subject in all respects to Section 10.4(f)): (1) Rights, options or warrants distributed by the Company to all or substantially all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s capital stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (a) are deemed to be transferred with such shares of the Common Stock; (b) are not exercisable; and (c) are also issued in respect of future issuances of the Common Stock, will be deemed not to have been distributed for purposes of this Section 10.4(c) (and no An adjustment to the Conversion Rate ~~under this Section 10.4(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants will be deemed~~ made pursuant to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate will be made under this Section 10.4(c). (2) If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the Closing, are subject to events, upon the occurrence of which such 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 will be deemed to be the date of distribution and the Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants will 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, options or warrants, or any Trigger Event or other event of the type described in the immediately preceding ~~clause (2) with respect thereto that was counted~~ paragraph shall become effective on the day immediately after the date fixed for ~~purposes~~ the determination of ~~calculating a distribution amount for which an adjustment~~ holders of Company Common Stock entitled to the Conversion Rate under this Section 10.4(c) was made: (a) in the case of any such rights, options or warrants that will all have been redeemed or repurchased without exercise by any holders thereof, upon such final redemption or repurchase (x) the Conversion Rate will be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate will then again be readjusted to give effect to receive such distribution~~, deemed distribution or Trigger Event, as~~ . If the case may be, as though it were a cash distribution pursuant to Section 10.4(d), equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made Company distributes to all holders of Company Common Stock as of the date of such redemption or repurchase; and (b) in the case of such rights, options or warrants that have expired or been terminated without exercise by any holders thereof, the Conversion Rate will be readjusted as if such rights, options and warrants had not been issued. (4) For purposes of Sections 10.4(a), 10.4(b) and 10.4(c), if any dividend or distribution to which this Section 10.4(c) is applicable includes one or both of: (a) a dividend or distribution of shares of Common Stock to which Section 10.4(a) is applicable (the “Clause A Distribution”); or (b) an issuance of rights, options or warrants to which Section 10.4(b) is applicable (the “Clause B Distribution”), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2) the Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then be made, except that, if determined by the Company (A) the “Record Date” of the Clause A Distribution and the Clause B Distribution will be deemed to be the Record Date of the Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding immediately prior to the Close of Business on the Record Date or immediately prior to the Open of Business on such effective date” within the meaning of Section 10.4(a) or “outstanding immediately prior to the Close of Business on the Record Date” within the meaning of Section 10.4(b). (ii) With respect to an adjustment pursuant to this Section 10.4(c) where there has been an Ex-Dividend Date for a dividend or other distribution on the Common Stock of shares of capital stock of any class or series, or similar equity interest, of or relating to a ~~Subsidiary~~ subsidiary or other business ~~unit, that are, or, when issued, will be, listed or admitted for trading on a United States national securities exchange~~ unit of the Company (a “Spin-Off”), the Conversion Rate in effect immediately before the close of business on the date fixed for determination of holders of Company Common Stock entitled to receive such distribution will be ~~calculated~~ adjusted based on the following formula: CR CR1 = CR0 ~~× FMV + MP0 MP0 where,~~ x (FMV0+MP0)/MP0 where CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ 10th Trading Day immediately following and including the effective date of ~~Business on the Record Date for~~ the Spin-Off; CR CR1 = the new Conversion Rate ~~in effect~~ immediately after the ~~Close~~ 10th Trading Day immediately following and including the effective date of ~~Business on the Record Date for~~ the Spin-Off; ~~FMV~~ FMV0 = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Company Common Stock applicable to one ~~share of~~ Company Common ~~Stock (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest)~~ Share over the first ~~ten (10)~~ 10 consecutive Trading ~~Day period commencing on, and including,~~ Days after the effective date ~~for~~ of the Spin-~~Off (such period, the “Valuation Period”)~~Off; and MP0 = the average of the Closing Sale Prices of ~~the~~ Company Common Stock over the ~~Valuation Period~~first 10 consecutive Trading Days after the effective date of the Spin-Off. ~~The~~ An adjustment to the Conversion Rate ~~under~~ made pursuant to the immediately preceding paragraph ~~of this Section 10.4(c)~~ will ~~be determined~~ occur on the ~~last day~~ 11th Trading Day from and including the effective date 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~~ If any ~~conversion during~~ such dividend or distribution described in this paragraph (c) is declared but not paid or made, the ~~Valuation Period for any Spin-Off, references within this Section 10.4(c)(ii) related to ten (10) Trading Days will~~ new Conversion Rate shall be ~~deemed~~ readjusted to be ~~replaced with~~ the Conversion Rate that would then be in effect if 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~~dividend or distribution had not been declared. (d) If ~~an Ex-Dividend Date occurs for a~~ the Company makes any cash dividend or distribution in respect of any of its quarterly fiscal periods (without regard to ~~all or substantially~~ when paid) to all holders of ~~the~~ Company Common Stock in an aggregate amount that, together with other cash dividends or distributions made in respect of such quarterly fiscal period, exceeds the product of $0.5125 (~~other than any dividend or distribution in connection with~~ the ~~Company’s liquidation, dissolution or winding up)~~“Reference Dividend”) multiplied by the number of shares of Company Common Stock outstanding on the record date for such distribution, the Conversion Rate will be ~~recalculated~~ adjusted based on the following formula: CR CR1 = CR0 ~~× ▇▇▇ ▇▇▇ – C where,~~ x SP0/(SP0-C) where CR0 = the Conversion Rate in effect immediately prior to the ~~Close of Business on the Record~~ Ex-Dividend Date for such distribution; CR CR1 = the new Conversion Rate ~~in effect~~ immediately after the ~~Close of Business on the Record~~ Ex-Dividend Date for such distribution; SP0 = the average of the Closing Sale Prices of ~~the~~ Company Common Stock ~~over~~ for the ~~ten (10)~~ 10 consecutive Trading ~~Day period ending on, and including,~~ Days prior to the ~~Trading Day~~ business day immediately preceding the earlier of the record date or the day prior to the Ex-Dividend Date for such distribution; and C = the amount in cash per ~~share~~ Company Common Share that the Company distributes to holders of Company Common Stock in respect of such quarterly fiscal period that exceeds the ~~Company pays, or distributes,~~ Reference Dividend. An adjustment to ~~all or substantially all holders of~~ the ~~Common Stock. Any adjustment~~ Conversion Rate made ~~under~~ pursuant to this ~~Section 10.4(d~~paragraph (d) ~~will~~ shall become effective on the date immediately after the ~~Close~~ date fixed for the determination of ~~Business on the Record Date for~~ holders of Company Common Stock entitled to receive such dividend or distribution. ~~No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if~~ If any dividend or distribution described in this ~~Section 10.4(d~~paragraph (d) is declared but not so paid or made, the new Conversion Rate ~~will~~ shall be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. The Reference Dividend shall be subject to adjustment on account of any of the events set forth in paragraphs (a), (b) and (c) above and paragraph (e) below. Any such adjustment will be effected by multiplying the Reference Dividend by a fraction, the numerator of which will equal the Conversion Rate in effect immediately prior to the adjustment on account of such event and the denominator of which will equal the Conversion Rate as adjusted. (e) If the Company or any of its subsidiaries makes a payment in respect of a tender offer or exchange offer for Company Common Stock to the extent that the cash and value of any other consideration included in the payment per Company Common Share exceeds the Closing Sale Price of a Company Common Share on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”), the Conversion Rate will be adjusted based on the following formula: CR1 = CR0 x (AC + (SP1 x OS1))/(SP1 x OS0) where CR0 = the Conversion Rate in effect immediately prior to the date such tender or exchange offer expires; CR1 = the new Conversion Rate immediately following the date such tender or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors of the Company) paid or payable for Company Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Company Common Stock outstanding immediately prior to the date such tender or exchange offer expires; OS1 = the number of shares of Company Common Stock outstanding immediately after such tender or exchange offer expires (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer); and SP1 = the average of the Closing Sale Prices of Company Common Stock for the 10 consecutive Trading Days commencing on the Trading Day next succeeding the date such tender or exchange offer expires. If the application of the foregoing formula would result in a decrease in the Conversion Rate, no adjustment to the Conversion Rate will 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 purchase Company Common Stock pursuant to any such tender or exchange offer but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Conversion Rate shall be readjusted to be the Conversion Rate that would be in effect if such tender or exchange offer had not been made. (f) Notwithstanding the foregoing, ~~if “C”~~ in the event of an adjustment to the Conversion Rate pursuant to paragraph (~~as defined~~ d) or (e) above~~) is equal~~ , in no event will the Conversion Rate exceed 17.9051 shares of Company Common Stock, subject to ~~or greater than “SP0”~~ adjustment pursuant to paragraphs (~~as defined above~~a), (b) and (c) above. (g) If the Company has in ~~lieu~~ effect a rights plan while any Notes remain Outstanding, Holders of ~~the foregoing increase, the Purchaser~~ Notes will 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 the Company’s stockholder rights agreement unless, prior to conversion, the rights have expired, terminated or been redeemed or unless the rights have separated from the Company Common Stock. If the rights provided for ~~each $1,000 principal amount~~ in the rights plan adopted by the Company have separated from the Company Common Stock in accordance with the provisions of the ~~Bond~~applicable stockholder rights agreement so that Holders of Notes would not be entitled to receive any rights in respect of Company Common Stock that the Company elects to deliver as Net Shares upon conversion of Notes, the Conversion Rate will be adjusted at the ~~sam~~time of separation as if the Company had distributed to all holders of Company Common Stock 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 lieu of any such adjustment, the Company may amend such applicable stockholder rights agreement to provide that upon a conversion of Notes the Holders will receive, in addition to Company Common Stock that the Company elects to deliver as Net Shares upon such conversion, the rights which would have attached to such Company Common Stock if the rights had not become separated from the Company Common Stock under such applicable stockholder rights agreement. To the extent that the Company adopts any future stockholder rights agreement, upon a conversion of Notes in respect of which the Company elects to deliver Company Common Stock as Net Shares, a Holder of Notes shall receive, in addition to such Company Common Stock, the rights under the future stockholder rights agreement whether or not the rights have separated from Company Common Stock at the time of conversion and no adjustment will be made in accordance with paragraph (c) or otherwise. In addition to the adjustments pursuant to paragraphs (a) through (g) above, the Company may increase the Conversion Rate in order to avoid or diminish any income tax to holders of Company Common Stock resulting from any dividend or distribution of capital stock (or rights to acquire Company Common Stock) 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 will be conclusive and Company will mail to Holders of the Notes a notice of the increased Conversion Rate and the period during which it will 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 2.14 a Holder shall be deemed for U.S. federal tax purposes to have received a distribution or an Additional Interest payment, the Company may set off any withholding tax it 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 Stock, if any, otherwise deliverable to a Holder upon a conversion of Notes in accordance with the provisions of Section 2.12 hereof or a redemption or repurchase of a Note in accordance with the provisions of Section 2.07, 2.08 or 2.09 hereof. The Company will not make any adjustment to the Conversion Rate if Holders of the Notes are permitted to participate, on an as-converted basis, in the tr

Appears in 1 contract

Sources: Second Supplemental Indenture (Bre Properties Inc /Md/)

Conversion Rate Adjustments. ~~The~~ Each Fixed Conversion Rate ~~will~~ shall be ~~subject~~ adjusted as provided below, except that no adjustment shall be made to ~~adjustments from time to time~~the Fixed Conversion Rates if Holders of the Bonds participate, ~~without duplication~~as a result of holding the Bonds, ~~upon the occurrence of~~ in any of the ~~following events~~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 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 (i)~~ Guarantor issues ~~solely~~ ordinary shares ~~of Common Stock~~ as a dividend or distribution on its ~~shares of Common Stock~~ordinary shares, ~~(ii) subdivides Common Stock~~ or ~~(iii) combines Common Stock~~if the Guarantor effects a share split or share combination, ~~the~~ each Fixed Conversion Rate will be ~~calculated~~ adjusted based on the following formula: ~~CR = CR0 × OS OS0~~ where, CR0 = the Fixed Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record Date for~~ ex-dividend date of such dividend or distribution, or immediately prior to the ~~Open~~ open of ~~Business~~ business on the effective date of such ~~subdivision~~ share split or ~~combination of Common Stock~~combination, as ~~the case may be~~applicable; CR CR1 = the Fixed Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on such ex-dividend date or effective date; OS0 = the number of the Guarantor’s ordinary shares outstanding immediately prior to the open of business on such ex-dividend date or such effective date; OS1 = the number of the Guarantor’s ordinary shares outstanding immediately after giving effect to 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 ~~Record Date~~ 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 open of business on the ex-dividend date for such dividend or distribution, or immediately after the ~~Open~~ open of ~~Business~~ business on the effective date of for such ~~subdivision~~ share split or ~~combination of Common Stock~~share combination, 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~~ applicable. If any dividend or ~~distribution, or immediately prior to~~ distribution of 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 10.4(a) will 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 such dividend, distribution, subdivision or combination type described in this Section ~~10.4(a~~3.1(a) is declared but not so paid or made, ~~the~~ each Fixed Conversion Rate ~~will~~ shall be immediately readjusted, effective as of the date the ~~Company~~Guarantor’s ~~board~~ Board of ~~directors~~ Directors determines not to pay such dividend or ~~distribution or to effect such subdivision or combination~~distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared or such subdivision or combination had not been announced. (b) If an Ex-Dividend Date occurs for a distribution to all or substantially all holders of Common Stock of any rights, options or warrants entitling such holders for a period of not more than sixty (60) calendar days from the announcement date for such distribution to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock), at a price per share less than the average of the Closing Sale Prices of the Common Stock for the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution, the Conversion Rate will be calculated based on the following 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 distribution; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such distribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Close of Business on the Record Date for such distribution; X = the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants divided by the average of the Closing Sale Prices of Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution. Any adjustment made under this Section 10.4(b) will be made successively whenever any such rights, options or warrants are issued and will become effective immediately after the Close of Business on the Record Date for such distribution. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants, including because the distributed rights, options or warrants were not exercised, the Conversion Rate will be decreased to the Conversion Rate that would then be in effect had the increase with respect to the distribution of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so distributed, the Conversion Rate will be decreased to the Conversion Rate that would then be in effect if the Ex-Dividend Date for such distribution had not occurred. For purposes of this Section 10.4(b), in determining whether any rights, options or warrants entitle the Purchaser to subscribe for or purchase shares of Common Stock at a price that is less than the average of the Closing Sale Prices of the Common Stock over the applicable ten (10) consecutive Trading Day period, there will be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration if other than cash to be determined in good faith by the Company’s board of directors. (i) 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, evidences of its indebtedness or other assets or property of the Company to all or substantially all holders of the Common Stock (excluding (A) dividends or distributions and rights, options or warrants as to which an adjustment was effected under Sections 10.4(a) or 10.4(b); (B) dividends or distributions paid exclusively in cash covered under Section 10.4(d); and (C) Spin-Offs), then the Conversion Rate will be calculated based on the following formula: CR = CR0 × ▇▇▇ ▇▇▇ – 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 ten (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 Company’s 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 adjustment made under the above portion of this Section 10.4(c) will 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 will 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, the Purchaser will 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 Bond, 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 purposes of this Section 10.4(c)(i) (and subject in all respects to Section 10.4(f)): (1) Rights, options or warrants distributed by the Company to all or substantially all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s capital stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (a) are deemed to be transferred with such shares of the Common Stock; (b) are not exercisable; and (c) are also issued in respect of future issuances of the Common Stock, will be deemed not to have been distributed for purposes of this Section 10.4(c) (and no adjustment to the Conversion Rate under this Section 10.4(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants will be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate will be made under this Section 10.4(c). (2) If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the Closing, are subject to events, upon the occurrence of which such 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 will be deemed to be the date of distribution and the Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants will 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, options or warrants, or any Trigger Event or other event of the type described in the immediately preceding clause (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 10.4(c) was made: (a) in the case of any such rights, options or warrants that will all have been redeemed or repurchased without exercise by any holders thereof, upon such final redemption or repurchase (x) the Conversion Rate will be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate will then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution pursuant to Section 10.4(d), equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase; and (b) in the case of such rights, options or warrants that have expired or been terminated without exercise by any holders thereof, the Conversion Rate will be readjusted as if such rights, options and warrants had not been issued. (4) For purposes of Sections 10.4(a), 10.4(b) and 10.4(c), if any dividend or distribution to which this Section 10.4(c) is applicable includes one or both of: (a) a dividend or distribution of shares of Common Stock to which Section 10.4(a) is applicable (the “Clause A Distribution”); or (b) an issuance of rights, options or warrants to which Section 10.4(b) is applicable (the “Clause B Distribution”), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2) the Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then be made, except that, if determined by the Company (A) the “Record Date” of the Clause A Distribution and the Clause B Distribution will be deemed to be the Record Date of the Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding immediately prior to the Close of Business on the Record Date or immediately prior to the Open of Business on such effective date” within the meaning of Section 10.4(a) or “outstanding immediately prior to the Close of Business on the Record Date” within the meaning of Section 10.4(b). (ii) With respect to an adjustment pursuant to this Section 10.4(c) where there has been an Ex-Dividend Date for a dividend or other distribution on the Common Stock of shares of capital stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit, that are, or, when issued, will be, listed or admitted for trading on a United States national securities exchange (a “Spin-Off”), the Conversion Rate will be calculated 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 Record Date for the Spin-Off; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for the Spin-Off; FMV = the 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 (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first ten (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 Closing Sale Prices of the Common Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph of this Section 10.4(c) will 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 10.4(c)(ii) related to ten (10) Trading Days will 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 distribution to all or substantially all holders of the Common Stock (other than any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up), the Conversion Rate will be recalculated based on the following formula: CR = CR0 × ▇▇▇ ▇▇▇ – C 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 ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and C = the amount in cash per share of Common Stock the Company pays, or distributes, to all or substantially all holders of the Common Stock. Any adjustment made under this Section 10.4(d) will become effective immediately after the Close of Business on the Record Date for such dividend or distribution. No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if any dividend or distribution described in this Section 10.4(d) is declared but not so paid or made, the Conversion Rate will be readjusted to the Fixed Conversion Rate that would then be in effect if such dividend or distribution had not been declared~~. Notwithstanding~~ . (b) If the ~~foregoing~~Guarantor issues to all or substantially all holders of its ordinary shares any rights, ~~if “C” (as defined above) is equal~~ 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 ~~greater than “SP0” (as defined above), in lieu~~ purchase ordinary shares of the ~~foregoing increase,~~ Guarantor at a price per share less than the ~~Purchaser will receive, for each $1,000 principal amount~~ current market price of the ~~Bond~~Guarantor’s ordinary shares on the date of the first public announcement of the terms of such issuance, at each Fixed Conversion Rate will be increased based on the ~~sam~~following formula: where, CR0 = the Fixed Conversion Rate in effect immediately prior to the open of business on the ex-dividend date for such issuance; CR1 = the Fixed Conversion Rate in effect immediately after the open of business on such ex-dividend date; OS0 = the number of the Guarantor’s ordinary shares outstanding immediately prior to the open of business on such ex-dividend date;

Appears in 1 contract

Sources: Second Supplemental Indenture (AngloGold Ashanti Holdings PLC)

Conversion Rate Adjustments. The Conversion Rate ~~will~~ shall be ~~subject to adjustments~~ adjusted from time to ~~time~~time by the Company as follows, except that the Company shall not make any adjustment to the Conversion Rate if Holders may participate, as a result of holding the Securities (and at the same time the holders of Common Shares participate), in the transaction described below as if such Holders of Securities held a number of Common Shares equal to the then-applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Securities held by such Holder, without ~~duplication, upon the occurrence of any of the following events:~~having to convert their Securities. (a) If the ~~Company (i) issues solely shares~~ Company, at any time or from time to time while any of ~~Common Stock as~~ the Securities are outstanding, pays a dividend or makes a distribution on in Common Shares to all holders of its ~~shares of~~ outstanding Common ~~Stock~~Shares, ~~(ii)~~ or if the Company subdivides or combines its Common ~~Stock or (iii) combines Common Stock~~Shares, then the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: ~~CR = CR0 × OS OS0~~ where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ open of business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the Business Day immediately following distribution or the effective date of such subdivision or combination, as applicable CR' = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or the Business Day immediately following such effective date, as applicable OS0 = the number of Common Shares outstanding immediately prior to such Ex-Dividend Date or effective date, as applicable OS' = the number of Common Shares outstanding immediately after giving effect to such dividend, distribution, subdivision or combination, as applicable Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the Record Date for such dividend or distribution, or ~~immediately prior to~~ the ~~Open of Business on the effective~~ date of fixed for determination for such Common Share 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~~ combination. If any dividend or ~~distribution, or immediately after~~ distribution of 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 10.4(a) will 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 such dividend, distribution, subdivision or combination type described in this Section ~~10.4(a~~13.04(a) is declared but not so paid or made, the Conversion Rate ~~will~~ shall again be ~~immediately readjusted, effective as of the date the Company’s board of directors determines not to pay such dividend or distribution or to effect such subdivision or combination,~~ adjusted to the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been ~~declared or such subdivision or combination had not been announced~~declared. (b) If ~~an Ex-Dividend Date occurs for a distribution~~ the Company, at any time or from time to time while any of the Securities are outstanding, distributes to holders of all or substantially all ~~holders~~ of its outstanding Common ~~Stock of any~~ Shares certain rights, warrants or options ~~or warrants entitling such holders for a period of not more than sixty (60) calendar days from the announcement date for such distribution~~ to subscribe for or to purchase ~~shares of~~ Common ~~Stock (or securities convertible into Common Stock),~~ Shares at a price per ~~share~~ Common Share less than the average of the last reported Closing Sale Prices of the Common ~~Stock~~ Shares for the ~~ten (10)~~ 10 consecutive ~~Trading~~ Trading-Day period ending on, and including, the Trading Day immediately preceding the ~~announcement~~ declaration date for such distribution, which rights, warrants or options are exercisable for not more than 60 calendar days from the Record Date for such distribution, the Conversion Rate ~~will~~ shall be ~~calculated~~ adjusted based on the following ~~formula: CR = CR0 × OS0 + X OS0 + Y~~ formula (provided that the Conversion Rate shall be readjusted to the extent that such rights, warrants or options are not exercised prior to their expiration): where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date ~~for~~ of such ~~distribution; CR~~ distribution CR' = the Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on ~~the Record~~ such Ex-Dividend Date ~~for such distribution;~~ OS0 = the number of ~~shares of~~ Common ~~Stock~~ Shares outstanding immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date ~~for such distribution;~~ X = the total number of ~~shares of~~ Common ~~Stock~~ Shares issuable pursuant to such rights, warrants, or options ~~or warrants; and~~ Y = the number of ~~shares of~~ Common ~~Stock~~ Shares equal to the quotient of (a) the aggregate price payable to exercise all such ~~rights, options~~ rights or warrants ~~divided by~~ and (b) the average of the Closing Sale Prices of Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution. Any adjustment made under this Section 10.4(b) will be made successively whenever any such rights, options or warrants are issued and will become effective immediately after the Close of Business on the Record Date for such distribution. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants, including because the distributed rights, options or warrants were not exercised, the Conversion Rate will be decreased to the Conversion Rate that would then be in effect had the increase with respect to the distribution of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so distributed, the Conversion Rate will be decreased to the Conversion Rate that would then be in effect if the Ex-Dividend Date for such distribution had not occurred. For purposes of this Section 10.4(b), in determining whether any rights, options or warrants entitle the Purchaser to subscribe for or purchase shares of Common Stock at a price that is less than the average of the Closing Sale Prices Price of the Common ~~Stock over~~ Shares for the ~~applicable ten (10)~~ 10 consecutive Trading ~~Day period, there will be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable~~ Days ending on exercise thereof, with the value of such consideration if other than cash to be determined in good faith by the Company’s board of directors. (i) 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, evidences of its indebtedness or other assets or property of the Company to all or substantially all holders of the Common Stock (excluding (A) dividends or distributions and rights, options or warrants as to which an adjustment was effected under Sections 10.4(a) or 10.4(b); (B) dividends or distributions paid exclusively in cash covered under Section 10.4(d); and (C) Spin-Offs), then the Conversion Rate will be calculated based on the following formula: CR = CR0 × ▇▇▇ ▇▇▇ – 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 ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such ~~distribution;~~ distribution Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Business Day following the date of announcement of the issuance of such rights, warrants or options. To the extent that Common Shares are not delivered pursuant to such rights, warrants or options upon the expiration or termination of such rights, warrants or options 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, warrants or options been made on the basis of the delivery of only the number of Common Shares actually delivered. In the event that such rights, warrants or options 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 shareholders entitled to receive such rights, warrants or options had not been fixed. In determining whether any rights, warrants or options entitle the holders to subscribe for or purchase Common Shares at less than such Closing Sale Price, and ~~FMV =~~ in determining the ~~fair market~~ aggregate offering price of such Common Shares, there shall be taken into account any consideration received for such rights, warrants or options and any amount payable on exercise or conversion thereof, the value ~~(as~~ of such consideration, if other than cash, to be determined in good faith by the ~~Company’s board~~ Board of ~~directors)~~ 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 adjustment made under the above portion of this Section 10.4(c) will 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 will 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, the Purchaser will 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 Bond, 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 distributionCompany. For the purposes of this Section ~~10.4(c)(i) (and subject in all respects to Section 10.4(f~~13.04(c)~~): (1) Rights~~, rights, warrants or options ~~or warrants~~ distributed by the Company to all ~~or substantially all~~ holders of the Common ~~Stock~~ Shares entitling them to subscribe for or purchase shares of the Company~~’s capital stock, including Common~~ 's Capital Stock (either initially or under certain circumstances), which rights, ~~options~~ warrants or ~~warrants~~options, until the occurrence of a specified event or events (~~a “~~"Trigger Event~~”):~~ "): (ai) are deemed to be transferred with such ~~shares of the~~ Common ~~Stock;~~ Shares; (bii) are not exercisable; ~~and~~ and (ciii) are also issued in respect of future issuances of ~~the~~ Common ~~Stock~~Shares, ~~will~~ shall be deemed not to have been distributed for purposes of this Section ~~10.4(c~~13.04(c) (and no adjustment to the Conversion ~~Rate~~ Price under this Section ~~10.4(c~~13.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, warrants or options ~~or warrants will~~ shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate ~~will~~ shall be made under this Section ~~10.4(c~~13.04(c)~~. (2)~~ . If any such right, ~~option~~ warrant or ~~warrant~~option, including any such existing rights, warrants or options ~~or warrants~~ distributed prior to the ~~Closing~~date of this Indenture, are subject to events, upon the occurrence of which such rights, warrants or 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 ~~will~~ shall be deemed to be the date of distribution and ~~the Record Date~~ record date with respect to new rights, warrants or options ~~or warrants~~ with such rights (~~in which case~~ and a termination or expiration of the existing rights, warrants or options ~~or warrants will 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, ~~options~~ warrants or ~~warrants~~options, or any Trigger Event or other event (of the type described in the ~~immediately~~ preceding ~~clause (2~~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 ~~10.4(c~~13.04(c) was made: , (aA) in the case of any such rights, warrants or options ~~or warrants that will~~ which shall all have been redeemed or ~~repurchased~~ purchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase ~~(x) the Conversion Rate will be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate will then again be readjusted~~ to give effect to such ~~distribution, deemed~~ distribution or Trigger Event, as the case may be, as though it were a cash ~~distribution pursuant to Section 10.4(d)~~distribution, equal to the per share redemption or ~~repurchase~~ purchase price received by a holder ~~or holders~~ of Common ~~Stock~~ Shares with respect to such rights, warrants or options ~~or warrants~~ (assuming such holder had retained such ~~rights, options~~ rights or warrants), made to all applicable holders of Common ~~Stock~~ Shares as of the date of such redemption or repurchase~~; and~~ , and (bB) in the case of such rights, warrants or options ~~or warrants that~~ which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate ~~will~~ shall be readjusted as if such rights, warrants or options ~~and warrants~~ had not been issued. (4c) ~~For purposes~~ If the Company, at any time or from time to time while the Securities are outstanding, distributes to holders of ~~Sections 10.4(a)~~all or substantially all of its outstanding Common Shares, ~~10.4(b) and 10.4(c)~~Common Shares, ~~if any dividend~~ evidences of indebtedness or ~~distribution to which this Section 10.4(c) is applicable includes one~~ assets or ~~both of~~property, including securities, but excluding: (ai) ~~a dividend~~ dividends or ~~distribution of shares of Common Stock~~ distributions referred to ~~which~~ in Section ~~10.4(a) is applicable (the “Clause A Distribution”~~13.04(a)~~; or~~; (bii) ~~an issuance of~~ rights, warrants or options ~~or warrants~~ referred to ~~which~~ in Section ~~10.4(b) is applicable (the “Clause B Distribution”~~13.04(b), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2iii) dividends or distributions paid exclusively in cash; then the ~~Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any~~ Conversion Rate ~~adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then~~ shall be ~~made~~adjusted based on the following formula: where, ~~except that, if determined by~~ CR0 = the Company (A) the “Record Date” of the Clause A Distribution and the Clause B Distribution will be deemed to be the Record Date of the Clause C Distribution and (B) any shares of Common Stock included Conversion Rate in ~~the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding~~ effect immediately prior to the ~~Close~~ open of business on the Ex-Dividend Date for such distribution CR' = the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date SP0 = the Current Market Price of the Common Shares on the Trading Day immediately preceding such Ex-Dividend Date 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 as of the open of business on the Ex-Dividend Date for such distribution Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the Business on 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 13.04(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 the rights under the rights plan attached to the Common Shares unless 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 assets 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. If the then fair market value of the portion of the Common Shares, evidences of indebtedness or assets or property so distributed applicable to one Common Share is equal to or greater than the Current Market Price on the Trading Day immediately preceding the Ex-Dividend Date for such distribution, in lieu of the foregoing adjustment, adequate provisions shall be made so that each Holder of a Security shall have the right to receive on conversion in respect of each Security held by such Holder, in addition to the number of Common Shares which such Holder is entitled to receive, the amount and kind of securities and assets such Holder would have received had such Holder already owned a number of Common Shares equal to the then-applicable Conversion Rate immediately prior to the ~~Open~~ Record Date for the distribution of ~~Business on~~ the securities or assets; provided that no Holder shall be entitled to receive “Ineligible Consideration,” as defined below in Section 13.06, but the Company shall have the right (at its sole option) to deliver either such ~~effective date” within the meaning of Section 10.4(a)~~ Ineligible Consideration or “~~outstanding immediately prior~~ prescribed securities” for the purposes of clause 212(1)(b)(vii)(E) of the Income Tax Act (Canada) as it applied on December 31, 2007 with a market value (as conclusively determined by the Company’s Board of Directors) equal to the ~~Close~~ market value of ~~Business on the Record Date” within the meaning of Section 10.4(b~~such ineligible consideration)~~. (ii)~~ . With respect to an adjustment pursuant to this Section ~~10.4(c~~13.04(c) where there has been ~~an Ex-Dividend Date for~~ a payment of a dividend or other distribution on the Common ~~Stock of~~ Shares or shares ~~of capital stock~~ of any class or series, or similar equity interest, of or relating to a Subsidiary or other business ~~unit, that are, or, when issued, will be, listed or admitted for trading on a United States national securities exchange~~ unit (a “"Spin-Off”"), the Conversion Rate in effect immediately before 5:00 p.m., New York City time, on the effective date of the Spin-Off shall be increased based on the following formula in lieu of the formula above: where, CR0 = the Conversion Rate in effect immediately prior to 5:00 p.m., New York City time, on the effective date of the Spin-Off CR' = the Conversion Rate in effect immediately after 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 over the 10 consecutive Trading-Day period commencing on, and including, the Ex-Dividend Date of the Spin-Off MP0 = the average of the Closing Sale Prices of the Common Shares over the 10 consecutive Trading-Day period commencing on, and including, the Ex-Dividend Date of the Spin-Off The adjustment to the Conversion Rate under the preceding paragraph will occur on the 10th Trading Day from, and including, the Ex-Dividend Date of the Spin-Off and shall be ~~calculated~~ applied on a retroactive basis from, and including, the Ex-Dividend 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 Ex-Dividend 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 Ex-Dividend 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 Ex-Dividend Date of the Spin-Off with respect to which the settlement date would occur during the three Trading Days from, and including, the Ex-Dividend 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 Ex-Dividend Date of the Spin-Off. (d) If any cash dividend or other distribution is paid to all or substantially all holders of Common Shares, the Conversion Rate shall be adjusted based on the following formula: ~~CR = CR0 × FMV + MP0 MP0~~ where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex- Dividend Date for ~~the Spin-Off; CR~~ such dividend or distribution CR' = the Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on ~~the Record~~ such Ex- Dividend Date ~~for the Spin-Off; FMV~~ SP0 = the 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 (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first ten (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 Closing Sale Prices Current Market Price of the Common ~~Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph of this Section 10.4(c) will be determined~~ Shares 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 10.4(c)(ii) related to ten (10) Trading Days will 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 distribution to all or substantially all holders of the Common Stock (other than any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up), the Conversion Rate will be recalculated based on the following formula: CR = CR0 × ▇▇▇ ▇▇▇ – C 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 ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding ~~the~~ such Ex-Dividend Date ~~for such distribution; and~~ C = the amount in cash per share the Company distributes to holders of Common Stock the Company pays, or distributes, to all or substantially all holders of the Common Stock. Any adjustment made under this Section 10.4(d) will become effective immediately after the Close of Business on the Record Date for such dividend or distribution. No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if Shares If any dividend or distribution described in this ~~Section 10.4(d~~clause (d) is declared but not so paid or made, the new Conversion Rate ~~will~~ shall be readjusted to the Conversion Rate that would then be in effect if such dividend or other distribution had not been declared~~. Notwithstanding~~ . (e) If the ~~foregoing, if “C”~~ Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer (as such terms are defined ~~above~~under applicable U.S. securities laws) ~~is equal~~ for the Common Shares, to ~~or greater than “SP0” (as defined above),~~ the extent that the cash and value of any other consideration included in ~~lieu~~ the payment per Common Share exceeds the average of the ~~foregoing increase~~last reported Closing Sale Prices of the Common Shares over the 10 consecutive Trading-Day period commencing on, and including, the ~~Purchaser will receive~~Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, ~~for each $1,000 principal amount~~ the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the ~~Bond, at~~ Trading Day next succeeding the ~~sam~~date on which such tender or exchange offer expires CR' = the Conversion Rate in effect immediately after open of business on the Trading Day next succeeding the date on which such tender or exchange offer expires

Appears in 1 contract

Sources: Indenture (Jaguar Mining Inc)

Conversion Rate Adjustments. The Conversion Rate ~~will~~ shall be ~~subject to adjustments~~ adjusted from time to ~~time~~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 ~~duplication, upon the occurrence of any of the following events:~~having to convert their Securities. (a) If the ~~Company (i) issues solely shares~~ Company, at any time or from time to time while any of ~~Common Stock as~~ the Securities are outstanding, pays a dividend or make a distribution on in Common Shares to all holders of its ~~shares of~~ outstanding Common ~~Stock~~Shares, ~~(ii)~~ or if the Company subdivides or combines its Common ~~Stock or (iii) combines Common Stock,~~ Shares then the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: ~~CR = CR0 × OS OS0~~ where, CR0 = the Conversion Rate in effect immediately prior to such event CR' = the ~~Close~~ Conversion Rate in effect immediately after such event OS0 = the number of ~~Business~~ 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 ~~immediately prior to~~ the ~~Open of Business on the effective~~ date ~~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~~ fixed for determination for such share split or share combination. If any dividend or ~~distribution, or immediately after~~ distribution of 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 10.4(a) will 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 such dividend, distribution, subdivision or combination type described in this Section ~~10.4(a~~13.4(a) is declared but not so paid or made, the Conversion Rate ~~will~~ shall again be ~~immediately readjusted, effective as of the date the Company’s board of directors determines not to pay such dividend or distribution or to effect such subdivision or combination,~~ adjusted to the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been ~~declared or such subdivision or combination had not been announced~~declared. (b) If ~~an Ex-Dividend Date occurs for a distribution~~ 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 ~~Stock of any rights, options~~ Shares certain rights or warrants ~~entitling such holders for a period of not more than sixty (60) calendar days from the announcement date for such distribution~~ to ~~subscribe for or~~ purchase ~~shares of~~ Common ~~Stock~~ Shares (or securities convertible into or exchangeable or exercisable for Common ~~Stock),~~ Shares) at a price per share (or having a conversion, exchange or exercise price per share) less than the ~~average of the~~ Closing Sale ~~Prices~~ Price of Common Shares on the ~~Common Stock~~ Record Date for ~~the ten (10) consecutive Trading Day period ending on~~shareholders entitled to receive such rights and warrants, ~~and including, the Trading Day immediately preceding the announcement date~~ which rights or warrants are exercisable for ~~such distribution~~not more than 60 days, the Conversion Rate ~~will~~ shall be ~~calculated~~ adjusted based on the following ~~formula: CR = CR0 × OS0 + X OS0 + Y~~ 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 Close of Business on the Record Date for~~ such ~~distribution; CR~~ event CR' = the Conversion Rate in effect immediately after ~~the Close of Business on the Record Date for~~ such ~~distribution;~~ event OS0 = the number of ~~shares of~~ Common ~~Stock~~ Shares 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 ~~Stock~~ Shares issuable pursuant to such ~~rights, options or warrants; and~~ rights Y = the number of ~~shares of~~ Common ~~Stock~~ Shares equal to the aggregate offering price ~~payable to~~ 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, options~~ rights or warrants ~~divided~~ and dividing the product so obtained by ~~the average of the~~ such Closing Sale ~~Prices of Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution~~Price. ~~Any~~ Such adjustment ~~made under this Section 10.4(b) will be made successively whenever any such rights, options or warrants are issued and will~~ shall become effective immediately after the ~~Close~~ opening of ~~Business~~ business on the ~~Record Date for~~ day following the date of announcement of such ~~distribution~~issuance. To the extent that ~~shares of~~ Common ~~Stock~~ Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered ~~after the expiration of~~ pursuant to such ~~rights, options~~ rights or warrants, ~~including because~~ upon the ~~distributed rights, options~~ expiration or ~~warrants were not exercised~~termination of such rights or warrants, the Conversion Rate ~~will~~ shall be ~~decreased~~ readjusted to the Conversion Rate ~~that~~ which would then be in effect had the ~~increase with respect to~~ adjustments made upon the ~~distribution~~ issuance of such ~~rights, options~~ rights or warrants been made on the basis of the delivery of only the number of ~~shares of~~ Common ~~Stock~~ Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually delivered. If In the event that such ~~rights, options~~ rights or warrants are not so ~~distributed~~issued, the Conversion Rate ~~will~~ shall again be ~~decreased~~ adjusted to be the Conversion Rate ~~that~~ which would then be in effect if the ~~Ex-Dividend Date~~ date fixed for the determination of stockholders entitled to receive such ~~distribution~~ rights or warrants had not ~~occurred~~been fixed. ~~For purposes of this Section 10.4(b), in~~ In determining whether any ~~rights, options~~ rights or warrants entitle the ~~Purchaser~~ holders to subscribe for or purchase ~~shares of~~ Common ~~Stock~~ Shares at ~~a price that is~~ less than ~~the average of the~~ such Closing Sale ~~Prices~~ Price, and in determining the aggregate offering price of ~~the~~ such Common ~~Stock over the applicable ten (10) consecutive Trading Day period~~Shares, there ~~will~~ shall be taken into account any consideration ~~the Company receives~~ received for such ~~rights, options~~ rights 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 ~~Company’s board~~ Board of ~~directors. (i) If an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of shares~~ Directors 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, evidences of its indebtedness or other assets or property of the Company to all or substantially all holders of the Common Stock (excluding (A) dividends or distributions and rights, options or warrants as to which an adjustment was effected under Sections 10.4(a) or 10.4(b); (B) dividends or distributions paid exclusively in cash covered under Section 10.4(d); and (C) Spin-Offs), then the Conversion Rate will be calculated based on the following formula: CR = CR0 × ▇▇▇ ▇▇▇ – 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 ten (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 Company’s 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 adjustment made under the above portion of this Section 10.4(c) will 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 will 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, the Purchaser will 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 Bond, 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 ~~10.4(c)(i) (and subject in all respects to Section 10.4(f~~13.4(b)~~): (1) Rights~~, ~~options~~ rights or warrants distributed by the Company to all ~~or substantially all~~ holders of ~~the~~ its Common ~~Stock~~ Shares entitling them to subscribe for or purchase shares of the Company’s 's capital ~~stock, including Common Stock~~ stock (either initially or under certain circumstances), which ~~rights, options~~ rights or warrants, until the occurrence of a specified event or events (~~a “~~"Trigger Event~~”):~~ "): (a1) are deemed to be transferred with such ~~shares of the~~ Common ~~Stock;~~ Shares; (b2) are not exercisable; ~~and~~ and (c3) are also issued in respect of future issuances of ~~the~~ Common ~~Stock~~Shares, ~~will~~ shall be deemed not to have been distributed for purposes of this Section ~~10.4(c~~13.4(b) (and no adjustment to the Conversion ~~Rate~~ Price under this Section ~~10.4(c~~13.4(b) will be required) until the occurrence of the earliest Trigger Event, whereupon such ~~rights, options or~~ rights and warrants ~~will~~ shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate ~~will~~ shall be made under this Section ~~10.4(c~~13.4(b)~~. (2)~~ . If any such ~~right, option~~ right or warrant, including any such existing ~~rights, options~~ rights or warrants distributed prior to the ~~Closing~~date of this Indenture, are subject to events, upon the occurrence of which such ~~rights, options~~ 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 ~~will~~ shall be deemed to be the date of distribution and ~~the Record Date~~ record date with respect to new ~~rights, options~~ rights or warrants with such rights (~~in which case~~ and a termination or expiration of the existing ~~rights, options~~ rights or warrants ~~will 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, options~~ rights or warrants, or any Trigger Event or other event (of the type described in the ~~immediately~~ preceding ~~clause (2~~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 ~~10.4(c~~13.4(b) was made: , (a1) in the case of any such ~~rights, options~~ rights or warrants ~~that will~~ which shall all have been redeemed or ~~repurchased~~ purchased without exercise by any ~~holders~~ Holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase ~~(x) the Conversion Rate will be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate will then again be readjusted~~ to give effect to such ~~distribution, deemed~~ distribution or Trigger Event, as the case may be, as though it were a cash ~~distribution pursuant to Section 10.4(d)~~distribution, equal to the per share redemption or ~~repurchase~~ purchase price received by a holder ~~or holders~~ of Common ~~Stock~~ Shares with respect to such ~~rights, options~~ rights or warrants (assuming such holder had retained such ~~rights, options~~ rights or warrants), made to all applicable holders of Common ~~Stock~~ Shares as of the date of such redemption or repurchase~~; and~~ , and (b2) in the case of such ~~rights, options~~ rights or warrants ~~that~~ which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate ~~will~~ shall be readjusted as if such ~~rights, options~~ rights and warrants had not been issued. (4c) ~~For purposes~~ If the Company, at any time or from time to time while the Securities are outstanding, distributes to all or substantially all holders of ~~Sections 10.4(a)~~its Common Shares, ~~10.4(b) and 10.4(c)~~Common Shares of the Company, ~~if any dividend~~ evidences of its indebtedness or ~~distribution to which this Section 10.4(c) is applicable includes one or both of~~assets, including securities, but excluding: (ai) ~~a dividend~~ dividends or ~~distribution of shares of Common Stock~~ distributions referred to ~~which~~ in Section ~~10.4(a) is applicable (the “Clause A Distribution”~~13.4(a)~~; or~~; (bii) ~~an issuance of rights, options~~ rights or warrants referred to ~~which~~ in Section ~~10.4(b) is applicable (the “Clause B Distribution”~~13.4(b), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2iii) dividends or distributions referred to in Section 13.4(d); then the ~~Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any~~ Conversion Rate ~~adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then~~ shall be ~~made~~adjusted based on the following formula: where, ~~except that, if~~ 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 ~~Company (A) the “Record Date”~~ Board of Directors of the ~~Clause A Distribution and~~ Company) of the ~~Clause B Distribution will be deemed~~ Common Shares, evidences of indebtedness, assets or property distributed with respect to be each outstanding Common Share on the Record Date ~~of the Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding~~ for such distribution Such adjustment shall become effective immediately prior to the ~~Close~~ opening of ~~Business~~ business on the day following the Record Date ~~or immediately prior~~ 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 ~~Open~~ 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 ~~Business on such effective date” within~~ the ~~meaning~~ Common Shares. To the extent that the Company has a rights plan in effect upon conversion of ~~Section 10.4(a) or “outstanding immediately prior~~ the Securities into Common Shares, a Holder shall receive, in addition to the ~~Close~~ Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of ~~Business on~~ conversion, in which case the ~~Record Date” within~~ Conversion Rate will be adjusted as if the ~~meaning~~ Company distributed to all holders of ~~Section 10.4(b). (ii)~~ 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 ~~10.4(c~~13.4(c) where there has been ~~an Ex-Dividend Date for~~ a payment of a dividend or other distribution on the Common ~~Stock of~~ Shares or common shares ~~of capital stock~~ of any class or series, or similar equity interest, of or relating to a Subsidiary or other business ~~unit, that are, or, when issued, will be, listed or admitted for trading on a United States national securities exchange~~ unit (a “"Spin-Off”"), the Conversion Rate ~~will~~ 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 ~~calculated~~ 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 Record Date for the Spin-Off; CR~~ such distribution CR' = the Conversion Rate in effect immediately after the Close of Business on the Record Date for the Spin-Off; FMV = the 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 (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first ten (10) consecutive Trading Day period commencing on, and including, the effective date for the Spin-Off (such period, the “Valuation Period”); and MP0 distribution FMV0 = the average of the Closing Sale Prices of the Common ~~Stock~~ Shares or similar equity interest distributed to holders of Common Shares applicable to one common share over the ~~Valuation Period.~~ 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 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 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 ~~of this Section 10.4(c)~~ will ~~be determined~~ occur on the ~~last day of the Valuation Period but will be given effect immediately~~ fourteenth Trading Day after the ~~Close of Business~~ date on ~~the Record Date for the Spin~~which "Ex-Off. In respect of any conversion during the Valuation Period for any Spin-Off, references within this Section 10.4(c)(ii) related to ten (10) Trading Days will be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the effective date Dividend Trading" commences for such ~~Spin-Off to, but excluding,~~ distribution on The American Stock Exchange or such other national or regional exchange or market on which the ~~relevant Conversion Date~~Securities are then listed or quoted. (d) If ~~an Ex-Dividend Date occurs for a~~ any cash dividend or other distribution is made to all or substantially all holders of ~~the~~ Common ~~Stock (other than any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up)~~Shares, the Conversion Rate ~~will~~ shall be ~~recalculated~~ adjusted based on the following formula: ~~CR = CR0 × ▇▇▇ ▇▇▇ – C~~ where, CR0 = the Conversion Rate in effect ~~immediately prior to the Close of Business~~ on the Record Date for such ~~distribution; CR~~ distribution CR' = the Conversion Rate in effect immediately after the ~~Close~~ Record Date for such distribution SP0 = the Current Market Price of ~~Business~~ one of the Common Shares on the Record Date for such distribution; SP0 = the average of the Closing Sale Prices of the Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and distribution C = the amount in cash per share the Company distributes to holders of Common ~~Stock the Company pays, or distributes, to all or substantially all holders of the Common Stock~~Shares. ~~Any~~ Such adjustment ~~made under this Section 10.4(d) will~~ shall become effective immediately after ~~the Close of Business~~ 5:00 p.m., New York City time, on the Record Date for such dividend or distribution~~. No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However,~~ ; provided that if ~~any~~ such dividend or distribution ~~described in this Section 10.4(d)~~ is ~~declared but~~ not so paid or made, the Conversion Rate ~~will~~ shall again be ~~readjusted~~ adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared~~. Notwithstanding~~ . (e) If the ~~foregoing~~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, ~~if “C”~~ 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 ~~defined above~~determined by the Board of Directors) ~~is equal to or greater than “SP0” (as defined above), in lieu~~ of the ~~foregoing increase~~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 ~~Purchaser will receive~~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, ~~for each $1,000 principal amount of~~ the ~~Bond, at~~ following terms shall have the ~~sam~~meaning indicated:

Appears in 1 contract

Sources: Indenture (Minefinders Corp Ltd.)

Conversion Rate Adjustments. The Conversion Rate ~~will~~ shall be subject to ~~adjustments~~ adjustment from time to time, without duplication, upon the occurrence of any of the following events: (a) If the Company ~~(i)~~ issues solely shares of Common Stock as a dividend or distribution on all or substantially all of its shares of Common Stock, ~~(ii)~~ or if the Company subdivides ~~Common Stock~~ or ~~(iii)~~ combines Common Stock, the Conversion Rate ~~will~~ shall be ~~calculated~~ adjusted based on the following formula: CR = CR0 × OS OS0 where, CR0 = the Conversion Rate in effect 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; CR = the Conversion Rate in effect 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; ~~OS0~~ 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 ~~10.4(a~~5.05(a) ~~will~~ 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 such dividend, distribution, subdivision or combination described in this Section ~~10.4(a~~5.05(a) is declared but not so paid or made, the Conversion Rate ~~will~~ shall be immediately readjusted, effective as of the date the ~~Company’s board~~ Board of ~~directors~~ Directors determines not to pay such dividend or distribution or to effect such subdivision or combination, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared or ~~such~~ subdivision or combination had not been announced. (b) If an Ex-Dividend Date occurs for a distribution to all or substantially all holders of Common Stock of any rights, options or warrants entitling such holders for a period of not more than ~~sixty (60)~~ 60 calendar days from the announcement date for such distribution to subscribe for or purchase shares of Common ~~Stock (or securities convertible into Common~~ Stock), at a price per share less than the average of the Closing Sale Prices of the Common Stock for the ~~ten (10)~~ 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution, the Conversion Rate ~~will~~ shall be ~~calculated~~ increased based on the following 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 distribution; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such distribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Close of Business on the Record Date for such distribution; X = the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants divided by the average of the Closing Sale Prices of Common Stock over the ~~ten (10)~~ 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution. Any ~~adjustment~~ increase made under this Section ~~10.4(b~~5.05(b) ~~will~~ shall be made successively whenever any such rights, options or warrants are issued and ~~will~~ shall become effective immediately after the Close of Business on the Record Date for such distribution. To the extent that shares of Common Stock are not delivered after the ~~expiration~~ exercise of such rights, options or warrants, ~~including because the distributed rights, options or warrants were not exercised,~~ the Conversion Rate ~~will~~ shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the ~~distribution~~ issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so distributed, the Conversion Rate ~~will~~ shall be decreased to the Conversion Rate that would then be in effect if the ~~Ex-Dividend~~ Record Date for such distribution had not occurred. For purposes of this Section ~~10.4(b~~5.05(b), in determining whether any rights, options or warrants entitle the ~~Purchaser~~ Holders to subscribe for or purchase shares of Common Stock at a price that is less than the average of the Closing Sale Prices of the Common Stock over the applicable ~~ten (10)~~ 10 consecutive Trading Day period, there ~~will~~ shall be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration if other than cash to be determined in good faith by the ~~Company’s board~~ Board of ~~directors~~Directors. (iA) 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, ~~evidences of its indebtedness or other assets or property of the Company~~ to all or substantially all holders of the Common Stock (excluding (Ai) dividends or distributions and rights, options or warrants as to which an adjustment was effected under ~~Sections 10.4(a~~Section 5.05(a) or ~~10.4(b)~~Section 5.05(b) above; (Bii) dividends or distributions paid exclusively in cash covered under Section ~~10.4(d~~5.05(d); and (Ciii) Spin-Offs), then the Conversion Rate ~~will~~ shall be ~~calculated~~ increased based on the following formula: CR = CR0 × ▇▇▇ ▇▇▇ – 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 ~~ten (10)~~ 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 ~~Company’s board~~ Board of ~~directors~~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 ~~adjustment~~ increase made under the above portion of this Section ~~10.4(c~~5.05(c) ~~will~~ 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 ~~will~~ 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, ~~the Purchaser will~~ 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 ~~Bond~~Notes, the amount and ~~kind~~ type of the Relevant Distribution that such ~~holder~~ Holder would have received if such ~~holder~~ Holder owned a number of shares of Common Stock equal to the Conversion Rate on the Record Date for the distribution. For purposes of this Section ~~10.4(c)(i~~5.05(c)(A) (and subject in all respects to Section ~~10.4(f~~5.05(f)): (1) Rights, options or warrants distributed by the Company to all or substantially all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s capital stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (ai) are deemed to be transferred with such shares of the Common Stock; (bii) are not exercisable; and (ciii) are also issued in respect of future issuances of the Common Stock, ~~will~~ shall be deemed not to have been distributed for purposes of this Section ~~10.4(c~~5.05(c) (and no adjustment to the Conversion Rate under this Section ~~10.4(c~~5.05(c) ~~will~~ shall be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants ~~will~~ shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate ~~will~~ shall be made under this Section ~~10.4(c~~5.05(c). (2) If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the ~~Closing~~Issue Date, are subject to events, upon the occurrence of which such 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 ~~will~~ shall be deemed to be the date of distribution and the Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants ~~will~~ 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, options or warrants, or any Trigger Event or other event of the type described in the immediately preceding clause (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 ~~10.4(c~~5.05(c) was made: (ai) in the case of any such rights, options or warrants that ~~will~~ shall all have been redeemed or repurchased without exercise by any holders thereof, upon such final redemption or repurchase (x) the Conversion Rate ~~will~~ shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate ~~will~~ shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution pursuant to Section ~~10.4(d~~5.05(d), equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase; and (bii) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate ~~will~~ shall be readjusted as if such rights, options and warrants had not been issued. (4) For purposes of ~~Sections 10.4(a~~Section 5.05(a), ~~10.4(b~~Section 5.05(b) and ~~10.4(c~~this Section 5.05(c), if any dividend or distribution to which this Section ~~10.4(c~~5.05(c) is applicable includes one or both of: (ai) a dividend or distribution of shares of Common Stock to which Section ~~10.4(a~~5.05(a) is applicable (the “Clause A Distribution”); or (bii) an issuance of rights, options or warrants to which Section ~~10.4(b~~5.05(b) is applicable (the “Clause B Distribution”), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, ~~will~~ shall be deemed to be a dividend or distribution to which this Section ~~10.4(c~~5.05(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section ~~10.4(c~~5.05(c) with respect to such Clause C Distribution ~~will~~ shall then be made; and (2) the Clause A Distribution and Clause B Distribution ~~will~~ shall be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by ~~Sections 10.4(a~~Section 5.05(a) and ~~10.4(b~~Section 5.05(b) with respect thereto ~~will~~ shall then be made, except that, if determined by the Company (AI) the “Record Date” of the Clause A Distribution and the Clause B Distribution ~~will~~ shall be deemed to be the Record Date of the Clause C Distribution and (BII) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution ~~will~~ shall be deemed not to be “outstanding immediately prior to the Close of Business on the Record Date or immediately prior to the Open of Business on such effective date” within the meaning of Section ~~10.4(a~~5.05(a) or “outstanding immediately prior to the Close of Business on the Record Date” within the meaning of Section ~~10.4(b~~5.05(b). (iiB) With respect to an adjustment pursuant to this Section ~~10.4(c~~5.05(c) where there has been an Ex-Dividend Date for a dividend or other distribution on the Common Stock of shares of capital stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit, that are, or, when issued, will be, listed or admitted for trading on a ~~United States~~ U.S. national securities exchange (a “Spin-Off”), the Conversion Rate ~~will~~ shall be ~~calculated~~ 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 Record Date for the Spin-Off; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for the Spin-Off; FMV = the 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 (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first ~~ten (10)~~ 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 Closing Sale Prices of the Common Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph of this Section ~~10.4(c~~5.05(c) ~~will~~ 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 ~~10.4(c)(ii~~5.05(c)(B) related to ~~ten (10)~~ 10 Trading Days ~~will~~ 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 distribution to all or substantially all holders of the Common Stock (other than (i) any dividend or distribution in connection with the Company’s liquidation, dissolution or winding upup and (ii) a regular cash dividend that does not exceed $0.03 per share per quarter (the “Dividend Threshold Amount”)), the Conversion Rate ~~will~~ shall be ~~recalculated~~ increased based on the following formula: CR = CR0 × ~~▇▇▇ ▇▇▇~~ SP0 – T SP0 – C 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 ~~ten (10)~~ 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; ~~and C~~ T = the ~~amount in cash per share of Common Stock~~ Dividend Threshold Amount; provided that if the Company pays, or distributes, to all or substantially all holders of the Common Stock. Any adjustment made under this Section 10.4(d) will become effective immediately after the Close of Business on the Record Date for such dividend or distribution. No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if any dividend or distribution ~~described in this Section 10.4(d)~~ is ~~declared but~~ not ~~so paid or made~~a regular quarterly cash dividend, the ~~Conversion Rate~~ Dividend Threshold Amount will be ~~readjusted~~ deemed to ~~the Conversion Rate that would then~~ be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, the Purchaser will receive, for each $1,000 principal amount of the Bond, at the samzero; and

Appears in 1 contract

Sources: Ninth Supplemental Indenture (Ryland Group Inc)

Conversion Rate Adjustments. The Conversion Rate ~~will~~ shall be ~~subject to adjustments~~ adjusted from time to ~~time, without duplication, upon the occurrence of any of the following events~~time as follows: (a) If the Company ~~(i)~~ issues ~~solely shares of~~ Company Common ~~Stock~~ Shares as a dividend or distribution on ~~its shares~~ Company Common Shares to all holders of Company Common ~~Stock~~Shares, ~~(ii) subdivides Common Stock~~ or ~~(iii) combines Common Stock~~if the Company effects a share split or share combination, the Conversion Rate ~~will~~ shall be ~~calculated~~ adjusted based on the following formula: CR CR1 = CR0 ~~× OS OS0 where,~~ x (OS1/OS0) where CR0 = the Conversion Rate in effect immediately prior to the ~~Close of Business on the Record Date for~~ adjustment relating to 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; CR~~ event CR1 = the new Conversion Rate in effect ~~immediately after the Close of Business on the Record Date for~~ taking 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;~~ event into account OS0 = the number of ~~shares of~~ Company Common ~~Stock~~ Shares 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~~ event OS1 = the number of ~~shares of~~ Company Common ~~Stock that would be~~ Shares 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~~event. Any adjustment made ~~under~~ pursuant to this ~~Section 10.4(a~~paragraph (a) ~~will~~ shall become effective on the date that is immediately after (x) the ~~Close~~ date fixed for the determination of ~~Business on the Record Date for~~ shareholders entitled to receive such dividend or ~~distribution,~~ other distribution or ~~immediately after~~ (y) the ~~Open of Business~~ date on ~~the effective date of~~ which such ~~subdivision~~ split or combination ~~of Common Stock~~becomes effective, as ~~the case may be~~applicable. If ~~such dividend, distribution, subdivision~~ any dividend or ~~combination~~ distribution described in this ~~Section 10.4(a~~paragraph (a) is declared but not so paid or made, the new Conversion Rate ~~will~~ shall be ~~immediately readjusted, effective as of the date the Company’s board of directors determines not to pay such dividend or distribution or to effect such subdivision or combination,~~ readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been ~~declared or such subdivision or combination had not been announced~~declared. (b) If ~~an Ex-Dividend Date occurs for a distribution~~ the Company issues to ~~all or substantially~~ all holders of Company Common ~~Stock of~~ Shares any rights, warrants, options or ~~warrants~~ other securities entitling ~~such holders~~ them for a period of not more than ~~sixty (60) calendar~~ 45 days ~~from~~ after the ~~announcement~~ date ~~for such distribution~~ of issuance thereof to subscribe for or purchase ~~shares~~ Company Common Shares, or issues to all holders of Company Common ~~Stock (or~~ Shares securities convertible into Company Common ~~Stock)~~Shares for a period of not more than 45 days after the date of issuance thereof, in either case at a an exercise price per ~~share~~ Company Common Share or a conversion price per Company Common Share less than the ~~average of the~~ Closing Sale ~~Prices~~ Price of Company Common Shares on the ~~Common Stock for the ten (10) consecutive Trading Day period ending on, and including, the Trading~~ Business Day immediately preceding the time of announcement ~~date for~~ of such ~~distribution~~issuance, the Conversion Rate ~~will~~ shall be ~~calculated~~ adjusted based on the following formula: CR CR1 = CR0 ~~× OS0 + X OS0 + Y where,~~ x ((OS0+X)/(OS0+Y)) where CR0 = the Conversion Rate in effect immediately prior to the ~~Close of Business on the Record Date for~~ adjustment relating to such ~~distribution; CR~~ event CR1 = the new Conversion Rate ~~in effect immediately after the Close of Business on the Record Date for~~ taking such ~~distribution;~~ event into account OS0 = the number of ~~shares of~~ Company Common ~~Stock~~ Shares outstanding immediately prior to ~~the Close of Business on the Record Date for~~ such ~~distribution;~~ event X = the total number of ~~shares of~~ Company Common ~~Stock~~ Shares issuable pursuant to such rights, ~~options~~ warrants, options, other securities or ~~warrants; and~~ convertible securities Y = the number of ~~shares of~~ Company Common ~~Stock~~ Shares equal to the quotient of (A) the aggregate price payable to exercise such rights, ~~options~~ warrants, options, other securities or ~~warrants divided by~~ convertible securities and (B) the average of the Closing Sale Prices of Company Common ~~Stock over~~ Shares for the ~~ten (10)~~ 10 consecutive Trading ~~Day period ending on, and including,~~ Days prior to the ~~Trading~~ Business Day immediately preceding the date of announcement ~~date~~ for ~~such distribution. Any adjustment made under this Section 10.4(b) will be made successively whenever any such rights, options or warrants are issued and will become effective immediately after~~ the ~~Close of Business on the Record Date for such distribution. To the extent that shares of Common Stock are not delivered after the expiration~~ issuance of such rights, ~~options or~~ warrants, ~~including because~~ options, other securities or convertible securities. If the ~~distributed rights, options or warrants were not exercised,~~ application of the foregoing formula would result in a decrease in the Conversion ~~Rate will be decreased~~ Rate, no adjustment to the Conversion Rate ~~that would then~~ shall be made. For purposes of this paragraph (b), in ~~effect had~~ determining whether any rights, warrants, options, other securities or convertible securities entitle the ~~increase with respect~~ holders to subscribe for or purchase, or exercise a conversion right for, Company Common Shares at less than the ~~distribution~~ applicable Closing Sale Price of Company Common Shares, and in determining the aggregate exercise or conversion price payable for such Company Common Shares, there shall be taken into account any consideration received by the Company for such rights, ~~options~~ warrants, options, other securities or ~~warrants been made~~ convertible securities and any amount payable on exercise or conversion thereof, with the ~~basis~~ value of ~~delivery~~ such consideration, if other than cash, to be determined by the Board of ~~only~~ Trustees of the ~~number of shares of Common Stock actually delivered~~Company. If ~~such rights~~any right, ~~options~~ warrant, option, other security or ~~warrants are~~ convertible security described in this paragraph (b) is not ~~so distributed~~exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Conversion Rate ~~will~~ shall be ~~decreased~~ readjusted to the Conversion Rate that would then be in effect if ~~the Ex-Dividend Date for~~ such ~~distribution~~ right, warrant, option, other security or convertible security had not occurred. For purposes of this Section 10.4(b), in determining whether any rights, options or warrants entitle the Purchaser to subscribe for or purchase shares of Common Stock at a price that is less than the average of the Closing Sale Prices of the Common Stock over the applicable ten (10) consecutive Trading Day period, there will be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration if other than cash to be determined in good faith by the Company’s board of directorsbeen so issued. (ic) If ~~an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of~~ the Company distributes 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, evidences of its~~ indebtedness or other assets or property of the Company to all ~~or substantially all~~ holders of ~~the~~ Company Common ~~Stock~~ Shares, excluding: (~~excluding (A~~i) ~~dividends or distributions and~~ dividends, distributions, rights, ~~options~~ warrants, options, other securities or ~~warrants as~~ convertible securities referred to ~~which an adjustment was effected under Sections 10.4(a~~in paragraph (a) or ~~10.4(b);~~ (Bb) above, (ii) dividends or distributions paid exclusively in ~~cash covered under Section 10.4(d); and~~ cash, and (Ciii) Spin-~~Offs~~Offs described below in this paragraph (c), then the Conversion Rate ~~will~~ shall be ~~calculated~~ adjusted based on the following formula: CR CR1 = CR0 ~~× ▇▇▇ ▇▇▇ – FMV where,~~ x (SP0/(SP0-FMV)) where CR0 = the Conversion Rate in effect immediately prior to the ~~Close of Business on the Record Date for~~ adjustment relating to such ~~distribution; CR~~ event CR1 = the new Conversion Rate ~~in effect immediately after the Close of Business on the Record Date for~~ taking such ~~distribution;~~ event into account SP0 = the average of the Closing Sale Prices of Company Common Shares for the ~~Common Stock over the ten (10)~~ 10 consecutive Trading ~~Day period ending on, and including,~~ Days prior to the ~~Trading~~ Business Day immediately preceding the Exearlier of the record date or the ex-~~Dividend Date~~ dividend date for such ~~distribution; and~~ distribution FMV = the fair market value (as determined in good faith by the Board of Trustees of the Company~~’s 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~~ Company Common ~~Stock as~~ Share on the earlier of the ~~Open of Business on~~ record date or the Exex-~~Dividend Date~~ dividend date for such distribution. Any adjustment made under the above portion of this Section 10.4(c) will 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 will 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, the Purchaser will 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 Bond, 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 purposes of this Section 10.4(c)(i) (and subject in all respects to Section 10.4(f)): (1) Rights, options or warrants distributed by the Company to all or substantially all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s capital stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (a) are deemed to be transferred with such shares of the Common Stock; (b) are not exercisable; and (c) are also issued in respect of future issuances of the Common Stock, will be deemed not to have been distributed for purposes of this Section 10.4(c) (and no An adjustment to the Conversion Rate ~~under this Section 10.4(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants will be deemed~~ made pursuant to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate will be made under this Section 10.4(c). (2) If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the Closing, are subject to events, upon the occurrence of which such 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 will be deemed to be the date of distribution and the Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants will 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, options or warrants, or any Trigger Event or other event of the type described in the immediately preceding clause (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 10.4(c) was made: (a) in the case of paragraph shall be made successively whenever any such ~~rights, options or warrants that will all have been redeemed or repurchased without exercise by any~~ distribution is made and shall become effective on the day immediately after the date fixed for the determination of holders thereof, upon such final redemption or repurchase (x) the Conversion Rate will be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate will then again be readjusted of Company Common Shares entitled to ~~give effect to~~ receive such distribution~~, deemed distribution or Trigger Event, as~~ . If the case may be, as though it were a cash distribution pursuant to Section 10.4(d), equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made Company distributes to all holders of Company Common ~~Stock as of the date of such redemption or repurchase; and (b) in the case of such rights~~Shares, options or warrants that have expired or been terminated without exercise by any holders thereof, the Conversion Rate will be readjusted as if such rights, options and warrants had not been issued. (4) For purposes of Sections 10.4(a), 10.4(b) and 10.4(c), if any dividend or distribution to which this Section 10.4(c) is applicable includes one or both of: (a) a dividend or distribution of shares of Common Stock to which Section 10.4(a) is applicable (the “Clause A Distribution”); or (b) an issuance of rights, options or warrants to which Section 10.4(b) is applicable (the “Clause B Distribution”), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2) the Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then be made, except that, if determined by the Company (A) the “Record Date” of the Clause A Distribution and the Clause B Distribution will be deemed to be the Record Date of the Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding immediately prior to the Close of Business on the Record Date or immediately prior to the Open of Business on such effective date” within the meaning of Section 10.4(a) or “outstanding immediately prior to the Close of Business on the Record Date” within the meaning of Section 10.4(b). (ii) With respect to an adjustment pursuant to this Section 10.4(c) where there has been an Ex-Dividend Date for a dividend or other distribution on the Common Stock of shares of capital stock of any class or series, or similar equity interest, of or relating to a ~~Subsidiary~~ subsidiary or other business ~~unit, that are, or, when issued, will be, listed or admitted for trading on a United States national securities exchange~~ unit of the Company (a “Spin-Off”), the Conversion Rate ~~will~~ shall be ~~calculated~~ adjusted based on the following formula: CR CR1 = CR0 ~~× FMV + MP0 MP0 where,~~ x ((FMV0+MP0)/MP0) where CR0 = the Conversion Rate in effect immediately prior to the ~~Close of Business on the Record Date for the Spin-Off; CR~~ adjustment relating to such event CR1 = the new Conversion Rate ~~in effect immediately after~~ taking such event into account FMV0 = the ~~Close of Business~~ value, based on ~~the Record Date for the Spin-Off; FMV =~~ the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Company Common Stock applicable to one share of Common Stock (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) Shares over the first ~~ten (10)~~ 10 consecutive Trading ~~Day period commencing on, and including,~~ Days after the effective date ~~for~~ of the Spin-Off ~~(such period, the “Valuation Period”); and~~ applicable to one Company Common Share MP0 = the average of the Closing Sale Prices of ~~the~~ Company Common ~~Stock~~ Shares over the ~~Valuation Period~~first 10 consecutive Trading Days after the effective date of the Spin-Off. ~~The~~ An adjustment to the Conversion Rate ~~under~~ made pursuant to the immediately preceding paragraph ~~of this Section 10.4(c) will be determined~~ shall occur on the ~~last day of the Valuation Period but will be given effect immediately~~ 10th Trading Day after the ~~Close~~ effective date of ~~Business on the Record Date for~~ the Spin-Off. ~~In respect of~~ If any ~~conversion during~~ such dividend or distribution described in this paragraph (c) is declared but not paid or made, the ~~Valuation Period for any Spin-Off, references within this Section 10.4(c)(ii) related to ten (10) Trading Days will~~ new Conversion Rate shall be ~~deemed~~ readjusted to be ~~replaced with~~ the Conversion Rate that would then be in effect if 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~~dividend or distribution had not been declared. (d) If ~~an Ex-Dividend Date occurs for a~~ the Company makes any cash dividend or distribution during any of its quarterly fiscal periods (without regard to ~~all or substantially~~ 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 ~~Stock (other than any dividend or distribution in connection with~~ Shares outstanding on the ~~Company’s liquidation, dissolution or winding up)~~record date for such distribution, the Conversion Rate ~~will~~ shall be ~~recalculated~~ adjusted based on the following formula: CR CR1 = CR0 ~~× ▇▇▇ ▇▇▇ – C where,~~ x ((SP0-RD)/(SP0-C)) where CR0 = the Conversion Rate in effect immediately prior to the ~~Close of Business on the Record Date for~~ adjustment relating to such ~~distribution; CR~~ event CR1 = the new Conversion Rate ~~in effect immediately after the Close of Business on the Record Date for~~ taking such ~~distribution;~~ event into account SP0 = the average of the Closing Sale Prices of Company Common Shares for the ~~Common Stock over the ten (10)~~ 10 consecutive Trading ~~Day period ending on, and including,~~ Days prior to the ~~Trading Day~~ business day immediately preceding the Exearlier of the record date or the day prior to the ex-~~Dividend Date~~ dividend date for such ~~distribution; and~~ distribution RD= the Reference Dividend C = the amount in cash per ~~share of~~ Company Common ~~Stock~~ Share that the Company ~~pays, or distributes,~~ distributes to ~~all or substantially all~~ holders of Company Common Shares in respect of such quarterly fiscal period. An adjustment to the ~~Common Stock. Any adjustment~~ Conversion Rate made ~~under~~ pursuant to this ~~Section 10.4(d~~paragraph (d) ~~will~~ shall become effective on the date immediately after the ~~Close~~ date fixed for the determination of ~~Business on the Record Date for~~ holders of Company Common Shares entitled to receive such dividend or distribution. ~~No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if~~ If any dividend or distribution described in this ~~Section 10.4(d~~paragraph (d) is declared but not so paid or made, the new Conversion Rate ~~will~~ 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 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 Closing Sale Price of a Company Common Share on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (the “C” Expiration Time”), the Conversion Rate shall be adjusted based on the following formula: CR1 = CR0 x ((AC + (SP1 x OS1))/(SP1 x OS0)) 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 AC = the aggregate value of all cash and any other consideration (as ~~defined above~~determined in good faith by the Board of Trustees of the Company) ~~is equal~~ paid or payable for Company Common Shares purchased in such tender or exchange offer OS0 = the number of Company Common Shares outstanding immediately prior to the date such tender or ~~greater than “SP0”~~ exchange offer expires OS1 = the number of Company Common Shares outstanding immediately after such tender or exchange offer expires (~~as defined above), in lieu~~ after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer) SP1 = the average of the Closing Sale Prices of Company Common Shares for the 10 consecutive Trading Days commencing on the Trading Day next succeeding the date such tender or exchange offer expires. If the application of the foregoing ~~increase~~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 purchase Company Common Shares pursuant to any such tender or exchange offer but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the ~~Purchaser will~~ new Conversion Rate shall be readjusted to be the Conversion Rate that would be in effect if such tender or exchange offer had not been made. (f) Notwithstanding the foregoing, 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 ~~each $1,000 principal amount~~ in the rights plan adopted by the Company have separated from the Company Common Shares in accordance with the provisions of the ~~Bond~~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 ~~sam~~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 2.14, a Holder shall be deemed for U.S. federal tax purposes to have received a distribution or other income from the Company, the Company may set off any withholding tax it or the 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

Sources: First Supplemental Indenture (Acadia Realty Trust)

Conversion Rate Adjustments. (a) The applicable Conversion Rate shall be adjusted from time to time by the Issuer as follows, except that the Issuer will not make any adjustments to the Conversion Rate if Holders participate (as a result of holding Notes and at the same time as ADS holders participate) in any of the transactions described below as if such Holders held a number of ADSs equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holders without having to convert their Notes. A Holder will be deemed to have so participated if the transaction results in an issuance of securities or a distribution of other property that are held by the ADS depositary or the CPO trustee (to the extent required to be later distributed by the CPO trustee to the ADS depository for the benefit of such Holders of the Notes) at the time of conversion of such Notes into ADSs. (i) If the Issuer issues solely Ordinary Shares as a dividend or any other distribution (including by recapitalization of retained earnings) on all or substantially all Ordinary Shares, or if the Issuer effects a share split or share combination of its Ordinary Shares, the applicable Conversion Rate will be subject to adjustments from time to time, without duplication, upon the occurrence of any of the following events: (a) If the Company (i) issues solely shares of Common Stock as a dividend or distribution on its shares of Common Stock, (ii) subdivides Common Stock or (iii) combines Common Stock, the Conversion Rate will be calculated adjusted based on the following formula: CR = CR0 × OS OS0 where, CR0 = the applicable Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record Date~~ Business Day immediately following (x) the date fixed for the determination of holders of Ordinary Shares entitled to receive such dividend or ~~distribution,~~ distribution or ~~immediately prior to~~ (y) the ~~Open of Business~~ date on ~~the effective date of~~ which such ~~subdivision~~ split or combination ~~of Common Stock~~becomes effective, as applicable (such date specified in clause (x) or (y), the ~~case may be~~“Dividend Record Date”); CR = the applicable Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on the Business Day immediately following the Dividend 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~~Date; OS0 = the number of ~~shares of Common Stock~~ Ordinary Shares outstanding immediately prior to the ~~Close~~ open of ~~Business~~ business on the Dividend 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~~Date; and OS = the number of ~~shares of Common Stock~~ Ordinary Shares that would be have been outstanding immediately ~~after giving effect~~ prior to the open of business on the Dividend Record Date as adjusted to take into account such dividend, distribution, split or combination. If any dividend or ~~distribution~~distribution of the type described in this clause (i) is declared that results in an adjustment pursuant to this clause (i) but is not so paid or made, or ~~immediately after~~ the ~~effective date of such subdivision~~ outstanding Ordinary Shares are not split or ~~combination of Common Stock~~combined, as the case may be. Any adjustment made under this Section 10.4(a) will 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 such dividend, distribution, subdivision or combination described in this Section 10.4(a) is declared but not so paid or made, the Conversion Rate ~~will~~ shall be immediately readjusted, effective (in the case of a dividend or distribution) as of the earliest of the date (A) the ~~Company~~Issuer’s ~~board~~ shareholders’ meeting or Board of ~~directors~~ Directors determines not to pay such dividend or ~~distribution~~ distribution, (B) the non-payment of such dividend is publicly announced or (C) the dividend was to ~~effect such subdivision~~ have been paid, or (in the case of a stock split or combination) the date on which such split or combination was to have been effective, to the Conversion Rate that would then be in effect if such ~~dividend~~ dividend, distribution, share split or ~~distribution~~ share combination had not been declared or ~~such subdivision or combination had not been~~ announced. (bii) If ~~an Ex-Dividend Date occurs for a distribution~~ the Issuer distributes to all or substantially all holders of ~~Common Stock of~~ Ordinary Shares any rights, ~~options~~ options, warrants or ~~warrants~~ other securities entitling ~~such holders~~ them for a period of not more than ~~sixty (60)~~ 45 calendar days from the ~~announcement~~ record date for such distribution to subscribe for or purchase ~~shares of Common Stock~~ Ordinary Shares (or securities convertible into ~~Common Stock~~Ordinary Shares), at a price per ~~share~~ Ordinary Share (or conversion price per Ordinary Share) less than the average of the ~~Closing~~ Last Reported Sale Prices of the ~~Common Stock~~ Ordinary Shares for the ~~ten (10)~~ 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the ~~announcement~~ declaration date for such distribution, the applicable Conversion Rate will be ~~calculated~~ adjusted based on the following formula: CR = CR0 × (OS0 + X X) (OS0 + Y Y) where, CR0 = the applicable Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the Business Day immediately following the date fixed for the determination of shareholders entitled to receive such rights, options, warrants or other securities (such date, the “Rights Distribution Record ~~Date for such distribution~~Date”); CR = the applicable Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on the Business Day immediately following the Rights Distribution Record ~~Date for such distribution~~Date; OS0 = the number of ~~shares of Common Stock~~ Ordinary Shares outstanding immediately prior to the ~~Close~~ open of ~~Business~~ business on the Rights Distribution Record ~~Date for such distribution~~Date; X = the total number of ~~shares of Common Stock~~ Ordinary Shares issuable pursuant to such rights, ~~options~~ options, warrants or ~~warrants~~other securities; and Y = the number of ~~shares of Common Stock~~ Ordinary Shares equal to the aggregate price payable to exercise such rights, ~~options~~ options, warrants or ~~warrants~~ other securities divided by the average of the ~~Closing~~ Last Reported Sale Prices of ~~Common Stock~~ the Ordinary Shares over the ~~ten (10)~~ 10 consecutive Trading Day period ending ~~on, and including,~~ on the Trading Day immediately preceding the date of announcement ~~date for such distribution. Any adjustment made under this Section 10.4(b) will be made successively whenever any~~ of the distribution of such rights, ~~options~~ options, warrants or other securities. If such rights, options, warrants or other securities are ~~issued and~~ not so issued, the Conversion Rate will ~~become effective immediately after~~ remain the ~~Close of Business on the~~ Conversion Rate that would then be in effect if a Rights Distribution Record Date for such ~~distribution~~distribution had not been fixed. To In addition, to the extent that ~~shares of Common Stock~~ Ordinary Shares are not delivered after the expiration of such rights, ~~options~~ options, warrants or ~~warrants, including because the distributed rights, options or warrants were not exercised~~other securities, the Conversion Rate ~~will~~ shall be ~~decreased~~ readjusted to the Conversion Rate that would then be in effect had the ~~increase with respect to~~ adjustments made upon the ~~distribution~~ issuance of such rights, ~~options~~ options, warrants or ~~warrants~~ other securities been made on the basis of delivery of only the number of ~~shares of Common Stock~~ Ordinary Shares actually delivered. If such rights, options or warrants are not so distributed, the Conversion Rate will be decreased to the Conversion Rate that would then be in effect if the Ex-Dividend Date for such distribution had not occurred. For purposes of this ~~Section 10.4(b~~clause (ii), in determining whether any rights, ~~options~~ options, warrants or ~~warrants~~ other securities entitle the ~~Purchaser~~ holders to subscribe for or purchase ~~shares of Common Stock~~ Ordinary Shares at ~~a price that is~~ less than the average of the ~~Closing~~ Last Reported Sale Prices of ~~the Common Stock over~~ Ordinary Shares for each Trading Day in the applicable ~~ten (10)~~ 10 consecutive Trading Day ~~period~~Period, there ~~will~~ shall be taken into account any consideration the ~~Company~~ Issuer receives for such rights, ~~options~~ options, warrants or ~~warrants~~ other securities and any amount payable on exercise thereof, with the value of such consideration if other than cash to be determined ~~in good faith~~ by the ~~Company~~Issuer’s ~~board~~ Board of ~~directors~~Directors. (iiii) If ~~an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of~~ the Issuer distributes shares of ~~the Company’s capital stock~~its Capital Stock, evidences of ~~the Company’s indebtedness or~~ its Indebtedness, other assets or property ~~of the Company~~ or ~~rights, options~~ rights or warrants to acquire ~~the Company’s capital stock~~ its Capital Stock or other securities, ~~evidences of its indebtedness or other assets or property of the Company~~ to all or substantially all holders of ~~the Common Stock (excluding~~ Ordinary Shares, excluding (A) dividends or distributions and rights, ~~options or~~ options, warrants ~~as to which an adjustment was effected under Sections 10.4(a~~and other securities described in clause (i) or ~~10.4(b);~~ (ii) above or clause (v) below; (B) dividends or distributions paid exclusively in ~~cash covered under Section 10.4(d); and~~ cash, including as described in clause (iv) below; (C) dividends or distributions effected pursuant to a reclassification, merger, sale, conveyance or other transaction described in Section 12.06, where such dividend or distribution becomes Reference Property as described in Section 12.06; and (D) Spin-~~Offs),~~ Offs to which the provisions set forth below in this clause (iii) shall apply; then the applicable Conversion Rate will be ~~calculated~~ adjusted based on the following formula: CR = CR0 × ▇▇▇ (▇▇▇ ~~– FMV~~ - FMV) where, CR0 = the applicable Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record Date~~ Business Day immediately following the record date for such distribution; CR = the applicable Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record Date for~~ Business Day immediately following such ~~distribution~~record date; SP0 = the average of the ~~Closing~~ Last Reported Sale Prices of ~~the Common Stock~~ Ordinary Shares over the ~~ten (10)~~ 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 ~~Company~~Issuer’s ~~board~~ Board of ~~directors~~Directors or a committee thereof) of the shares of ~~capital stock~~Capital Stock, evidences of ~~indebtedness~~Indebtedness, ~~assets or property or rights~~assets, ~~options~~ property, rights or warrants distributed with respect to each outstanding ~~share of Common Stock~~ Ordinary Share as of the ~~Open~~ open of ~~Business~~ business on the Ex-Dividend Date for such distribution. Any adjustment made under the above portion of this Section 10.4(c) will 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 will be readjusted to be the Conversion Rate ; provided that ~~would then be in effect if such distribution had not been declared. Notwithstanding the foregoing,~~ if “FMV” (as ~~defined above)~~ set forth above is equal to or greater than “SP0” (as ~~defined~~ set forth above), in lieu of the foregoing ~~increase~~adjustment, adequate provision will be made so that each Holder shall receive on the ~~Purchaser will receive~~date on which the distributed property is distributed to holders of Ordinary Shares, ~~in respect of~~ for each ~~$1,000~~ U.S.$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 Bond~~Notes, the amount ~~and kind~~ of ~~the Relevant Distribution that~~ distributed property such ~~holder~~ Holder would have received if had such ~~holder~~ Holder owned a number of ~~shares of Common Stock equal~~ Ordinary Shares that it would have been entitled to receive based on the Conversion Rate on the ~~Record Date~~ record date for such distribution; provided further that if the ~~distribution. For purposes~~ Issuer’s Board of this Section 10.4(c)(i) (and subject in all respects to Section 10.4(f)): (1) Rights, options or warrants distributed by the Company to all or substantially all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s capital stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a Directors determines “Trigger Event”): (a) are deemed to be transferred with such shares of the Common Stock; (b) are not exercisable; and (c) are also issued in respect of future issuances of the Common Stock, will be deemed not to have been distributed FMV” for purposes of ~~this Section 10.4(c) (and no~~ the foregoing adjustment by reference to the ~~Conversion Rate under this Section 10.4(c) will be required) until~~ trading market for any securities, it must in doing so consider the ~~occurrence~~ prices in such market over the same period used in computing the average of the earliest Trigger Event, whereupon such rights, options or warrants will be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate will be made under this Section 10.4(c). (2) If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the Closing, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date Last Reported Sale Prices of the ~~occurrence of any and each such event will be deemed to be~~ Ordinary Shares over the ~~date of distribution and~~ 10 consecutive Trading Day period ending on the Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants will 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, options or warrants, or any Trigger Event or other event of the type described in the Trading Day immediately preceding ~~clause (2) with respect thereto that was counted~~ the Ex-Dividend Date for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 10.4(c) was made: (a) in the case of any such rights, options or warrants that will all have been redeemed or repurchased without exercise by any holders thereof, upon such final redemption or repurchase (x) the Conversion Rate will be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate will then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution pursuant to Section 10.4(d), equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase; and (b) in the case of such rights, options or warrants that have expired or been terminated without exercise by any holders thereof, the Conversion Rate will be readjusted as if such rights, options and warrants had not been issued. (4) For purposes of Sections 10.4(a), 10.4(b) and 10.4(c), if any dividend or distribution to which this Section 10.4(c) is applicable includes one or both of: (a) a dividend or distribution of shares of Common Stock to which Section 10.4(a) is applicable (the “Clause A Distribution”); or (b) an issuance of rights, options or warrants to which Section 10.4(b) is applicable (the “Clause B Distribution”), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2) the Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then be made, except that, if determined by the Company (A) the “Record Date” of the Clause A Distribution and the Clause B Distribution will be deemed to be the Record Date of the Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding immediately prior to the Close of Business on the Record Date or immediately prior to the Open of Business on such effective date” within the meaning of Section 10.4(a) or “outstanding immediately prior to the Close of Business on the Record Date” within the meaning of Section 10.4(b). (ii) . With respect to an adjustment pursuant to this ~~Section 10.4(c~~clause (iii) where there has been ~~an Ex-Dividend Date for~~ a payment of a dividend or other distribution on the ~~Common Stock of~~ Ordinary Shares or shares of ~~capital stock~~ Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business ~~unit, that are, or, when issued, will be, listed or admitted for trading on a United States national securities exchange~~ unit (a “Spin-Off”), the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: CR = CR0 × (FMV + ~~MP0~~ MP0) MP0 where, CR0 = the applicable Conversion Rate in effect immediately prior to the ~~Close~~ opening of ~~Business~~ business on the ~~Record Date~~ Business Day immediately following the record date for the Spin-Off; CR = the applicable Conversion Rate in effect immediately after the ~~Close~~ opening of ~~Business~~ business on the ~~Record Date for the Spin-Off~~Business Day immediately following such record date; FMV = the average of the ~~Closing~~ Last Reported Sale Prices of the ~~capital stock~~ Capital Stock or similar equity interest distributed to holders of ~~Common Stock~~ Ordinary Shares applicable to one ~~share of Common Stock (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest)~~ Ordinary Share over the first ~~ten (10)~~ 10 consecutive Trading Day period ~~commencing on~~immediately following, and including, the ~~effective date for~~ Ex-Dividend Date of the Spin-Off (~~such period,~~ the “Valuation Period”); and MP0 = the average of the ~~Closing~~ Last Reported Sale Prices of the ~~Common Stock~~ Ordinary Shares over the Valuation Period. The adjustment to the applicable Conversion Rate under the preceding paragraph of this ~~Section 10.4(c~~clause (iii) will be ~~determined~~ made immediately after the open of business on the day after the last day of the Valuation ~~Period~~ Period, but will be given effect ~~immediately after~~ as of the ~~Close~~ open of ~~Business~~ business on the ~~Record Date~~ Business Day immediately following the record date for the Spin-Off. In For purposes of determining the applicable Conversion Rate in respect of any conversion during the Valuation ~~Period for any Spin-Off~~Period, references within the portion of this ~~Section 10.4(c)(ii~~clause (iii) related to ~~ten (10)~~ Spin-Offs to 10 Trading Days ~~will~~ shall be deemed ~~to be~~ replaced with such lesser number of Trading Days as have elapsed from, and including, the ~~effective date for~~ Ex-Dividend Date of such Spin-Off to, but excluding, the ~~relevant~~ Conversion Date. . If any distribution or spin-off described in this clause (diii) If results in an Exadjustment to the Conversion Rate but such distribution or Spin-Dividend Date occurs for a cash dividend or distribution to all or substantially all holders of the Common Stock (other than any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up)Off is not so made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such distribution or Spin-Off had not been declared. (iv) If the Issuer makes or pays any cash dividend or any other cash distribution to all, or substantially all, holders of the outstanding Ordinary Shares, the applicable Conversion Rate will be ~~recalculated~~ adjusted based on the following formula: CR = CR0 × ▇▇▇ (▇▇▇ ~~– C~~ - C) where, CR0 = the applicable Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record Date~~ Business Day immediately following the record date for such dividend or distribution; CR = the applicable Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record Date for~~ Business Day immediately following such ~~distribution~~record date; SP0 = the average of the ~~Closing~~ Last Reported Sale Prices of the ~~Common Stock~~ Ordinary Shares over the ~~ten (10)~~ 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share ~~of Common Stock~~ the ~~Company pays, or distributes,~~ Issuer distributes to ~~all or substantially all~~ holders of the ~~Common Stock~~Ordinary Shares. ~~Any adjustment made under this Section 10.4(d) will become effective immediately after the Close of Business on the Record Date for~~ If such dividend or ~~distribution. No~~ distribution results in an adjustment ~~pursuant~~ to the ~~above formula will result in a decrease of~~ Conversion Rate under the ~~Conversion Rate. However, if any~~ preceding paragraph and such dividend or distribution ~~described in this Section 10.4(d)~~ is ~~declared but~~ not so paid or made, the Conversion Rate ~~will~~ shall again be ~~readjusted~~ adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (v) If (A) the Issuer or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for the Ordinary Shares, and (B) the cash and value of any other consideration included in the payment per Ordinary Share exceeds the average of the Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Date”), the applicable Conversion Rate will be adjusted based on the following formula: CR = CR0 × AC + (SP x OS) (SP x OS0) where, CR0 = the applicable Conversion Rate in effect immediately prior to the open of business on the Business Day next succeeding the Expiration Date; CR = the applicable Conversion Rate in effect immediately after the open of business on the Business Day next succeeding the Expiration Date; AC = the aggregate value of all cash and any other consideration (as determined by the Issuer’s Board of Directors or a committee thereof) paid or payable for Ordinary Shares purchased in such tender or exchange offer; OS0 = the number of Ordinary Shares outstanding immediately prior to the time (the “Expiration Time”) such tender or exchange offer expires (prior to giving effect to such tender or exchange offer); OS = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect to such tender or exchange offer); and SP = the average of the Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Expiration Date. The adjustment to the Conversion Rate under this clause (v) will be made at the close of business on the tenth Trading Day immediately following, and including, the Trading Day next succeeding the Expiration Date, but will be given effect as of the open of business on the Business Day following the Expiration Date. For purposes of determining the applicable Conversion Rate in respect of any conversion during the 10 Trading Days commencing on, and including, the Trading Day next succeeding the Expiration Date of any tender or exchange offer, references to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the Expiration Date to, but excluding the Conversion Date. If the Issuer or one of its Subsidiaries is obligated to purchase the Ordinary Shares pursuant to any such tender or exchange offer but the Issuer or the relevant Subsidiary is permanently prevented by applicable law from effecting any such purchase or all or any portion of such purchases are rescinded, the new Conversion Rate shall be readjusted to be the Conversion Rate that would be in effect if such tender or exchange offer had not been made or had only been made in respect of the purchases that had been effected. (vi) Notwithstanding the foregoing, if ~~“C”~~ any calculation required to be made in determining the adjustment to the Conversion Rate under this Section 12.05(a) cannot be made at such time because the facts required for such determination cannot be ascertained, the Issuer will make such determination as soon as practicable upon such information becoming determinate, and such adjustment will be made with retroactive effect to the first such date where the adjustment is required to be made. (~~as defined~~ vii) To the extent that any event would give rise to an adjustment to be made under more than one of the clauses set forth above~~) is equal~~ , or holders of the Issuer’s Ordinary Shares have the right to ~~or greater~~ elect between distributions that would be covered by more than ~~“SP0” (as defined above)~~one of such clauses, the Issuer shall, in ~~lieu of~~ good faith, determine the ~~foregoing increase~~adjustment to be made, including, if applicable, the ~~Purchaser will receive, for each $1,000 principal amount~~ order of ~~the Bond, at the sam~~th

Appears in 1 contract

Sources: Indenture (Cemex Sab De Cv)

Conversion Rate Adjustments. The Conversion Rate ~~will~~ shall be ~~subject to adjustments~~ adjusted from time to ~~time~~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 ~~duplication, upon the occurrence of any of the following events:~~having to convert their Securities. (a) If the ~~Company (i) issues solely shares~~ Company, at any time or from time to time while any of ~~Common Stock as~~ the Securities are outstanding, pays a dividend or make a distribution on in Common Shares to all holders of its ~~shares of~~ outstanding Common ~~Stock~~Shares, ~~(ii)~~ or if the Company subdivides or combines its Common ~~Stock or (iii) combines Common Stock,~~ Shares then the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: ~~CR = CR0 × OS OS0~~ where, CR0 = the Conversion Rate in effect immediately prior to such event CR’ = the ~~Close~~ Conversion Rate in effect immediately after such event OS0 = the number of ~~Business~~ 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 ~~immediately prior to~~ the ~~Open of Business on the effective~~ date ~~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~~ fixed for determination for such share split or share combination. If any dividend or ~~distribution, or immediately after~~ distribution of 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 10.4(a) will 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 such dividend, distribution, subdivision or combination type described in this Section ~~10.4(a~~16.04(a) is declared but not so paid or made, the Conversion Rate ~~will~~ shall again be ~~immediately readjusted, effective as of the date the Company’s board of directors determines not to pay such dividend or distribution or to effect such subdivision or combination,~~ adjusted to the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been ~~declared or such subdivision or combination had not been announced~~declared. (b) If ~~an Ex-Dividend Date occurs for a distribution~~ 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 ~~Stock of any rights, options~~ Shares certain rights or warrants ~~entitling such holders for a period of not more than sixty (60) calendar days from the announcement date for such distribution~~ to ~~subscribe for or~~ purchase ~~shares of~~ Common ~~Stock~~ Shares (or securities convertible into or exchangeable or exercisable for Common ~~Stock),~~ Shares) at a price per share (or having a conversion, exchange or exercise price per share) less than the ~~average of the~~ Closing Sale ~~Prices~~ Price of Common Shares on the ~~Common Stock~~ Record Date for ~~the ten (10) consecutive Trading Day period ending on~~shareholders entitled to receive such rights and warrants, ~~and including, the Trading Day immediately preceding the announcement date~~ which rights or warrants are exercisable for ~~such distribution~~not more than 60 days, the Conversion Rate ~~will~~ shall be ~~calculated~~ adjusted based on the following ~~formula: CR = CR0 × OS0 + X OS0 + Y~~ 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 Close of Business on the Record Date for~~ such ~~distribution; CR~~ event CR’ = the Conversion Rate in effect immediately after ~~the Close of Business on the Record Date for~~ such ~~distribution;~~ event OS0 = the number of ~~shares of~~ Common ~~Stock~~ Shares 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 ~~Stock~~ Shares issuable pursuant to such ~~rights, options or warrants; and~~ rights Y = the number of ~~shares of~~ Common ~~Stock~~ Shares equal to the aggregate offering price ~~payable to~~ 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, options~~ rights or warrants ~~divided~~ and dividing the product so obtained by ~~the average of the~~ such Closing Sale ~~Prices of Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution~~Price. ~~Any~~ Such adjustment ~~made under this Section 10.4(b) will be made successively whenever any such rights, options or warrants are issued and will~~ shall become effective immediately after the ~~Close~~ opening of ~~Business~~ business on the ~~Record Date for~~ day following the date of announcement of such ~~distribution~~issuance. To the extent that ~~shares of~~ Common ~~Stock~~ Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered ~~after the expiration of~~ pursuant to such ~~rights, options~~ rights or warrants, ~~including because~~ upon the ~~distributed rights, options~~ expiration or ~~warrants were not exercised~~termination of such rights or warrants, the Conversion Rate ~~will~~ shall be ~~decreased~~ readjusted to the Conversion Rate ~~that~~ which would then be in effect had the ~~increase with respect to~~ adjustments made upon the ~~distribution~~ issuance of such ~~rights, options~~ rights or warrants been made on the basis of the delivery of only the number of ~~shares of~~ Common ~~Stock~~ Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually delivered. If In the event that such ~~rights, options~~ rights or warrants are not so ~~distributed~~issued, the Conversion Rate ~~will~~ shall again be ~~decreased~~ adjusted to be the Conversion Rate ~~that~~ which would then be in effect if the ~~Ex-Dividend Date~~ date fixed for the determination of stockholders entitled to receive such ~~distribution~~ rights or warrants had not ~~occurred~~been fixed. ~~For purposes of this Section 10.4(b), in~~ In determining whether any ~~rights, options~~ rights or warrants entitle the ~~Purchaser~~ holders to subscribe for or purchase ~~shares of~~ Common ~~Stock~~ Shares at ~~a price that is~~ less than ~~the average of the~~ such Closing Sale ~~Prices~~ Price, and in determining the aggregate offering price of ~~the~~ such Common ~~Stock over the applicable ten (10) consecutive Trading Day period~~Shares, there ~~will~~ shall be taken into account any consideration ~~the Company receives~~ received for such ~~rights, options~~ rights 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 ~~Company’s board~~ Board of ~~directors. (i) If an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of shares~~ Directors 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, evidences of its indebtedness or other assets or property of the Company to all or substantially all holders of the Common Stock (excluding (A) dividends or distributions and rights, options or warrants as to which an adjustment was effected under Sections 10.4(a) or 10.4(b); (B) dividends or distributions paid exclusively in cash covered under Section 10.4(d); and (C) Spin-Offs), then the Conversion Rate will be calculated based on the following formula: CR = CR0 × ▇▇▇ ▇▇▇ – 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 ten (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 Company’s 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 adjustment made under the above portion of this Section 10.4(c) will 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 will 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, the Purchaser will 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 Bond, 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 ~~10.4(c)(i) (and subject in all respects to Section 10.4(f~~16.04(b)~~): (1) Rights~~, ~~options~~ rights or warrants distributed by the Company to all ~~or substantially all~~ holders of ~~the~~ its Common ~~Stock~~ Shares entitling them to subscribe for or purchase shares of the Company’s capital ~~stock, including Common Stock~~ stock (either initially or under certain circumstances), which ~~rights, options~~ rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): ): (a1) are deemed to be transferred with such ~~shares of the~~ Common ~~Stock;~~ Shares; (b2) are not exercisable; ~~and~~ and (c3) are also issued in respect of future issuances of ~~the~~ Common ~~Stock~~Shares, ~~will~~ shall be deemed not to have been distributed for purposes of this Section ~~10.4(c~~16.04(b) (and no adjustment to the Conversion ~~Rate~~ Price under this Section ~~10.4(c~~16.04(b) will be required) until the occurrence of the earliest Trigger Event, whereupon such ~~rights, options or~~ rights and warrants ~~will~~ shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate ~~will~~ shall be made under this Section ~~10.4(c~~16.04(b)~~. (2)~~ . If any such ~~right, option~~ right or warrant, including any such existing ~~rights, options~~ rights or warrants distributed prior to the ~~Closing~~date of this Indenture, are subject to events, upon the occurrence of which such ~~rights, options~~ 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 ~~will~~ shall be deemed to be the date of distribution and ~~the Record Date~~ record date with respect to new ~~rights, options~~ rights or warrants with such rights (~~in which case~~ and a termination or expiration of the existing ~~rights, options~~ rights or warrants ~~will 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, options~~ rights or warrants, or any Trigger Event or other event (of the type described in the ~~immediately~~ preceding ~~clause (2~~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 ~~10.4(c~~16.04(b) was made: , (a1) in the case of any such ~~rights, options~~ rights or warrants ~~that will~~ which shall all have been redeemed or ~~repurchased~~ purchased without exercise by any ~~holders~~ Holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase ~~(x) the Conversion Rate will be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate will then again be readjusted~~ to give effect to such ~~distribution, deemed~~ distribution or Trigger Event, as the case may be, as though it were a cash ~~distribution pursuant to Section 10.4(d)~~distribution, equal to the per share redemption or ~~repurchase~~ purchase price received by a holder ~~or holders~~ of Common ~~Stock~~ Shares with respect to such ~~rights, options~~ rights or warrants (assuming such holder had retained such ~~rights, options~~ rights or warrants), made to all applicable holders of Common ~~Stock~~ Shares as of the date of such redemption or repurchase~~; and~~ , and (b2) in the case of such ~~rights, options~~ rights or warrants ~~that~~ which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate ~~will~~ shall be readjusted as if such ~~rights, options~~ rights and warrants had not been issued. (4c) ~~For purposes~~ If the Company, at any time or from time to time while the Securities are outstanding, distributes to all or substantially all holders of ~~Sections 10.4(a)~~its Common Shares, ~~10.4(b) and 10.4(c)~~Common Shares of the Company, ~~if any dividend~~ evidences of its indebtedness or ~~distribution to which this Section 10.4(c) is applicable includes one or both of~~assets, including securities, but excluding: (ai) ~~a dividend~~ dividends or ~~distribution of shares of Common Stock~~ distributions referred to ~~which~~ in Section ~~10.4(a) is applicable (the “Clause A Distribution”~~16.04(a)~~; or~~; (bii) ~~an issuance of rights, options~~ rights or warrants referred to ~~which~~ in Section ~~10.4(b) is applicable (the “Clause B Distribution”~~16.04(b), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2iii) dividends or distributions referred to in Section 16.04(d); then the ~~Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any~~ Conversion Rate ~~adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then~~ shall be ~~made~~adjusted based on the following formula: where, ~~except that, if~~ 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 such Record Date for such distribution FMV = the fair market value (as determined by the ~~Company (A) the “Record Date”~~ Board of Directors of the ~~Clause A Distribution and~~ Company) of the ~~Clause B Distribution will be deemed~~ Common Shares, evidences of indebtedness, assets or property distributed with respect to be each outstanding Common Share on the Record Date ~~of the Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding~~ for such distribution Such adjustment shall become effective immediately prior to the ~~Close~~ opening of ~~Business~~ business on the day following the Record Date ~~or immediately prior~~ for such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 16.04(c) by reference to the ~~Open~~ 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 ~~Business on such effective date” within~~ the ~~meaning~~ Common Shares. To the extent that the Company has a rights plan in effect upon conversion of ~~Section 10.4(a) or “outstanding immediately prior~~ the Securities into Common Shares, a Holder shall receive, in addition to the ~~Close~~ Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of ~~Business on~~ conversion, in which case the ~~Record Date” within~~ Conversion Rate will be adjusted as if the ~~meaning~~ Company distributed to all holders of ~~Section 10.4(b). (ii)~~ 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 ~~10.4(c~~16.04(c) where there has been ~~an Ex-Dividend Date for~~ a payment of a dividend or other distribution on the Common ~~Stock of~~ Shares or common shares ~~of capital stock~~ of any class or series, or similar equity interest, of or relating to a Subsidiary or other business ~~unit, that are, or, when issued, will be, listed or admitted for trading on a United States national securities exchange~~ unit (a “Spin-Off”), the Conversion Rate ~~will~~ 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 ~~calculated~~ 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 Record Date for the Spin-Off; CR~~ such distribution CR’ = the Conversion Rate in effect immediately after the Close of Business on the Record Date for the Spin-Off; FMV = the 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 (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first ten (10) consecutive Trading Day period commencing on, and including, the effective date for the Spin-Off (such period, the “Valuation Period”); and MP0 distribution FMV0 = the average of the Closing Sale Prices of the Common ~~Stock~~ Shares or similar equity interest distributed to holders of Common Shares applicable to one common share over the ~~Valuation Period.~~ 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 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 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 ~~of this Section 10.4(c)~~ will ~~be determined~~ occur on the ~~last day of the Valuation Period but will be given effect immediately~~ fourteenth Trading Day after the ~~Close of Business~~ date on ~~the Record Date for the Spin~~which “Ex-Off. In respect of any conversion during the Valuation Period for any Spin-Off, references within this Section 10.4(c)(ii) related to ten (10) Trading Days will be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the effective date Dividend Trading” commences for such ~~Spin-Off to, but excluding,~~ distribution on The American Stock Exchange or such other national or regional exchange or market on which the ~~relevant Conversion Date~~Securities are then listed or quoted. (d) If ~~an Ex-Dividend Date occurs for a~~ any cash dividend or other distribution is made to all or substantially all holders of ~~the~~ Common ~~Stock (other than any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up)~~Shares, the Conversion Rate ~~will~~ shall be ~~recalculated~~ adjusted based on the following formula: ~~CR = CR0 × ▇▇▇ ▇▇▇ – C~~ where, CR0 = the Conversion Rate in effect ~~immediately prior to the Close of Business~~ on the Record Date for such ~~distribution; CR~~ distribution CR’ = the Conversion Rate in effect immediately after the ~~Close~~ Record Date for such distribution SP0 = the Current Market Price of ~~Business~~ one of the Common Shares on the Record Date for such distribution; SP0 = the average of the Closing Sale Prices of the Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and distribution C = the amount in cash per share the Company distributes to holders of Common ~~Stock the Company pays, or distributes, to all or substantially all holders of the Common Stock~~Shares. ~~Any~~ Such adjustment ~~made under this Section 10.4(d) will~~ shall become effective immediately after ~~the Close of Business~~ 5:00 p.m., New York City time, on the Record Date for such dividend or distribution~~. No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However,~~ ; provided that if ~~any~~ such dividend or distribution ~~described in this Section 10.4(d)~~ is ~~declared but~~ not so paid or made, the Conversion Rate ~~will~~ shall again be ~~readjusted~~ adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared~~. Notwithstanding~~ . (e) If the ~~foregoing~~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 last reported sale price per Common Share on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer, ~~if “C”~~ 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 ~~defined above~~determined by the Board of Directors) ~~is equal to or greater than “SP0” (as defined above), in lieu~~ of the ~~foregoing increase~~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 average of the last reported sale prices of the Common Shares over the ten consecutive trading day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires. The adjustment to the conversion rate under 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 ~~Purchaser will receive~~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 16.04, ~~for each $1,000 principal amount of~~ the ~~Bond, at~~ following terms shall have the ~~sam~~meaning indicated:

Appears in 1 contract

Sources: Indenture (Gold Reserve Inc)

Conversion Rate Adjustments. The Conversion Rate ~~will~~ shall be subject to ~~adjustments~~ adjustment from time to ~~time~~time only as set forth below; provided, ~~without duplication~~however, ~~upon~~ that the ~~occurrence~~ Company shall not make any adjustments to the Conversion Rate if Holders participate (as a result of holding the Notes, and at the same time as the holders of Common Stock participate) in any of the ~~following events:~~transactions described in this Section 12.05 as if such Holders held a number of shares of Common Stock equal to the Conversion Rate immediately prior to the event that otherwise would result in a Conversion Rate adjustment, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder, without having to convert their Notes. (a) If the Company ~~(i)~~ issues ~~solely~~ shares of Common Stock as a dividend or distribution on ~~its~~ shares of Common Stock, ~~(ii) subdivides Common Stock~~ or ~~(iii) combines Common Stock~~if the Company effects a share split or share combination, the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: CR CR’ = CR0 ~~× OS~~ x OS’ OS0 where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such dividend or distribution, or immediately prior to the ~~Open~~ open of ~~Business~~ business on the effective date of such ~~subdivision~~ share split or ~~combination of Common Stock~~share combination, as the case may be; CR CR’ = the new Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such dividend or distribution, or immediately ~~after~~ prior to the ~~Open~~ open of ~~Business~~ business on the effective date of such ~~subdivision~~ share split or ~~combination of Common Stock~~share combination, as the case may be; OS0 = the number of shares of Common Stock outstanding immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such dividend or distribution, or immediately prior to the ~~Open~~ open of ~~Business~~ business on the effective date of such ~~subdivision~~ share split or ~~combination of Common Stock~~share combination, as the case may be; and OS OS’ = the number of shares of Common Stock ~~that would be~~ outstanding immediately after giving effect to such ~~dividend or~~ dividend, distribution, share split or ~~immediately after the effective date of such subdivision or combination of Common Stock, as the case may be~~share combination. Any adjustment made ~~under~~ pursuant to this Section ~~10.4(a~~12.05(a) ~~will~~ shall become effective immediately after (x) the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such dividend or ~~distribution,~~ distribution or ~~immediately after~~ (y) the ~~Open~~ open of ~~Business~~ business on the ~~effective~~ date of on which such ~~subdivision~~ split or combination ~~of Common Stock~~becomes effective, as ~~the case may be~~applicable. If ~~such dividend, distribution, subdivision~~ any dividend or ~~combination~~ distribution described in this Section ~~10.4(a~~12.05(a) is declared but not so paid or made, the new Conversion Rate ~~will~~ shall be immediately readjusted, effective as of the date the ~~Company’s board~~ Board of ~~directors~~ Directors determines not to pay such dividend or distribution ~~or to effect such subdivision or combination,~~ to the Conversion Rate that would then be in effect if such dividend or distribution had not been ~~declared or such subdivision or combination had not been announced~~declared. (b) If ~~an Ex-Dividend Date occurs for a distribution~~ the Company distributes to all or substantially all holders of Common Stock of any ~~rights, options~~ rights or warrants entitling ~~such holders~~ them to purchase, for a period of not more than ~~sixty (60) calendar~~ 45 days ~~from~~ after the ~~announcement~~ declaration date for ~~such distribution to subscribe for or purchase~~ the distribution, shares of Common Stock ~~(or securities convertible into Common Stock),~~ at a price per share less than the average of the ~~Closing~~ Last Reported Sale Prices of the Common Stock for the ten ~~(10)~~ consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the ~~announcement~~ declaration date for such distribution, the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: CR CR’ = CR0 × x OS0 + X OS0 + Y where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such distribution; CR CR’ = the new Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such distribution; OS0 = the number of shares of the Common Stock outstanding immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such distribution; X = the total number of shares of Common Stock issuable pursuant to such ~~rights, options~~ rights or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such ~~rights, options~~ rights or warrants divided by the average of the ~~Closing~~ Last Reported Sale Prices of the Common Stock over the ten ~~(10)~~ consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the ~~announcement~~ declaration date for such distribution. For the purposes of this Section 12.05(b) in determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than the average of the Last Reported Sale Prices of the Common Stock, and in determining the aggregate exercise price payable for such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable upon exercise thereof, with the value of such consideration, if other than cash, as shall be determined in good faith by the Board of Directors. Any ~~adjustment~~ increase made under this Section ~~10.4(b~~12.05(b) will be made successively whenever any such rights, options or warrants are ~~issued~~ distributed and ~~will~~ shall become effective immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such distribution. ~~To the extent that shares of Common Stock are~~ If any right or warrant described in this Section 12.05(b) is not ~~delivered after~~ exercised or converted prior to the expiration of ~~such rights, options~~ the exercisability or ~~warrants, including because the distributed rights, options or warrants were not exercised~~convertibility thereof, the new Conversion Rate ~~will~~ shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the ~~distribution~~ issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such ~~rights, options~~ rights or warrants are not so distributed, the Conversion Rate ~~will~~ shall be ~~decreased~~ decreased, effective as of the date the Board of Directors determines not to distribute such rights or warrants, to the Conversion Rate that would then be in effect if the ~~Ex-Dividend Date for such~~ distribution had not occurred. For purposes of this Section 10.4(b), in determining whether any rights, options or warrants entitle the Purchaser to subscribe for or purchase shares of Common Stock at a price that is less than the average of the Closing Sale Prices of the Common Stock over the applicable ten (10) consecutive Trading Day period, there will be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration if other than cash to be determined in good faith by the Company’s board of directorsbeen declared. (ic) If ~~an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of~~ the Company distributes shares of ~~the Company’s capital stock~~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~~ Capital Stock or other securities, ~~evidences of its indebtedness or other assets or property of the Company~~ to all or substantially all holders of ~~the~~ Common ~~Stock~~ Stock, excluding: (~~excluding (A~~i) ~~dividends or distributions and rights~~dividends, ~~options~~ distributions, rights or warrants as to which an adjustment was effected ~~under Sections 10.4(a~~pursuant to Section 12.05(a) or ~~10.4(b);~~ Section 12.05(b) of this Supplemental Indenture; (Bii) dividends or distributions paid exclusively in cash ~~covered under~~ as to which an adjustment was effected pursuant to Section ~~10.4(d)~~12.05(d) of this Supplemental Indenture; ~~and~~ and (Ciii) ~~Spin~~spin-~~Offs)~~offs to which the provisions set forth below in this Section 12.05(c) shall apply, then the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: CR CR’ = CR0 × x ▇▇▇ ▇▇▇ – FMV where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such distribution; CR CR’ = the new Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such distribution; SP0 = the average of the ~~Closing~~ Last Reported Sale Prices of the Common Stock over the ten ~~(10)~~ consecutive Trading Day period ending ~~on,~~ on and ~~including,~~ 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 ~~Company’s board~~ Board of ~~directors~~Directors) of ~~the~~ shares of ~~capital stock~~Capital Stock, ~~evidences~~ evidence of indebtedness, ~~assets~~ assets, property, rights or ~~property or rights~~warrants, ~~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 adjustment made under~~ If the ~~above portion~~ Board of Directors determines the “FMV” (as defined above) of any distribution for purposes of this Section ~~10.4(c~~12.05(c) ~~will~~ by reference to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution. An adjustment to the Conversion Rate made pursuant this Section 12.05(c) shall become effective immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for ~~such~~ the applicable distribution. No With respect to an adjustment pursuant to this Section 12.05(c) where there has been a payment of a dividend or other distribution on 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 that are, or when issued, will be, traded on a U.S. national securities exchange (each, a “spin-off”), the ~~above formula will result~~ Conversion Rate in ~~a decrease~~ effect immediately before 5:00 p.m., New York City time, on the tenth Trading Day immediately following, and including, the effective date of the spin-off will be increased based on the following formula: CR’ = CR0 x FMV0 + MP0 MP0 where, CR0 = the Conversion ~~Rate~~Rate in effect immediately prior to the tenth Trading Day immediately following, and including, the effective date of the spin-off; CR’ = the new Conversion Rate in effect immediately after the tenth Trading Day immediately following, and including, the effective date of the spin-off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of Common Stock over the first ten consecutive Trading Day period immediately following, and including, the effective date of the spin-off; and MP0 = the average of the Last Reported Sale Prices of the Common Stock over the first ten consecutive Trading Day period immediately following, and including, the effective date of the spin-off. ~~However~~The adjustment to the Conversion Rate described in this Section 12.05(c) shall occur immediately after the tenth Trading Day immediately following, if and including, the effective date of the spin-off; provided that, for purposes of determining the Conversion Rate in respect of any conversion during the ten Trading Days following the effective date of any spin-off, references within the portion of this Section 12.05(c) related to “spin-offs” to ten trading days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such spin-off and the relevant Conversion Date. If any dividend or distribution described in this Section 12.05(c) is declared but not so paid or made, the new Conversion Rate ~~will~~ shall be readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, the Purchaser will 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 Bond, 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 purposes of this Section ~~10.4(c)(i~~12.05(c) (and subject in all ~~respects~~ respect to Section ~~10.4(f~~12.11 of this Supplemental Indenture)~~): (1) Rights~~, rights, options or warrants distributed by the Company to all ~~or substantially all~~ holders of ~~the~~ its Common Stock entitling them to subscribe for or purchase shares of the Company’s ~~capital stock~~Capital Stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”): ): (ai) are deemed to be transferred with such shares of the Common Stock; ; (bii) are not exercisable; ~~and~~ and (ciii) are also issued in respect of future issuances of the Common Stock, ~~will~~ shall be deemed not to have been distributed for purposes of this Section ~~10.4(c~~12.05(c) (and no adjustment to the Conversion Rate under this Section ~~10.4(c~~12.05(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants ~~will~~ shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate ~~will~~ shall be made under this Section ~~10.4(c~~12.05(c)~~. (2)~~ . If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the ~~Closing~~date of this Supplemental Indenture, are subject to events, upon the occurrence of which such 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 ~~will~~ shall be deemed to be the date of distribution and ~~the~~ Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants ~~will~~ 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, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding ~~clause (2~~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 ~~10.4(c~~12.05(c) was made: , (a1) in the case of any such rights, options or warrants that ~~will~~ shall all have been redeemed or ~~repurchased~~ purchased without exercise by any holders thereof, upon such final redemption or ~~repurchase~~ purchase (x) the Conversion Rate ~~will~~ shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate ~~will~~ shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash ~~distribution pursuant to Section 10.4(d)~~distribution, equal to the per share redemption or ~~repurchase~~ purchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or ~~repurchase; and~~ purchase, and (b2) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate ~~will~~ shall be readjusted as if such rights, options and warrants had not been issued. (4) For purposes of Sections 10.4(a), 10.4(b) and 10.4(c), if any dividend or distribution to which this Section 10.4(c) is applicable includes one or both of: (a) a dividend or distribution of shares of Common Stock to which Section 10.4(a) is applicable (the “Clause A Distribution”); or (b) an issuance of rights, options or warrants to which Section 10.4(b) is applicable (the “Clause B Distribution”), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2) the Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then be made, except that, if determined by the Company (A) the “Record Date” of the Clause A Distribution and the Clause B Distribution will be deemed to be the Record Date of the Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding immediately prior to the Close of Business on the Record Date or immediately prior to the Open of Business on such effective date” within the meaning of Section 10.4(a) or “outstanding immediately prior to the Close of Business on the Record Date” within the meaning of Section 10.4(b). (ii) With respect to an adjustment pursuant to this Section 10.4(c) where there has been an Ex-Dividend Date for a dividend or other distribution on the Common Stock of shares of capital stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit, that are, or, when issued, will be, listed or admitted for trading on a United States national securities exchange (a “Spin-Off”), the Conversion Rate will be calculated 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 Record Date for the Spin-Off; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for the Spin-Off; FMV = the 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 (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first ten (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 Closing Sale Prices of the Common Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph of this Section 10.4(c) will 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 10.4(c)(ii) related to ten (10) Trading Days will 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~~ any cash dividend or distribution is made to all or substantially all holders of the Common ~~Stock (other than any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up)~~Stock, the Conversion Rate will be ~~recalculated~~ adjusted based on the following formula: CR CR’ = CR0 × x ▇▇▇ ▇▇▇ – C where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such dividend or distribution; CR CR’ = the new Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such dividend or distribution; SP0 = the ~~average of the Closing~~ Last Reported Sale ~~Prices~~ Price of the Common Stock ~~over the ten (10) consecutive Trading Day period ending on, and including,~~ on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and C = the amount in cash per share ~~of Common Stock~~ the Company ~~pays, or distributes,~~ distributes to ~~all or substantially all~~ holders of ~~the~~ Common Stock. ~~Any~~ Such an adjustment to the Conversion Rate made ~~under~~ pursuant to this Section ~~10.4(d~~12.05(d) ~~will~~ shall become effective immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for ~~such~~ the applicable dividend or distribution. ~~No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if~~ If any dividend or distribution described in this Section ~~10.4(d~~12.05(d) is declared but not so paid or made, the new Conversion Rate ~~will~~ shall be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared~~. Notwithstanding~~ . (e) If the ~~foregoing~~Company or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Common Stock, ~~if “C”~~ to the extent that the cash and value of any other consideration included in the payment per share of the Common Stock exceeds the Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula: CR’ = CR0 x AC + (SP’ x OS’) OS0 x SP’ where, CR0 = the Conversion Rate in effect at the close of business on the last Trading Day of the ten consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires; CR’ = the new Conversion Rate in effect immediately following the last Trading Day of the ten consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as ~~defined above~~determined in good faith by the Board of Directors) ~~is equal~~ paid or payable for shares of Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the expiration of such tender or ~~greater than “SP0”~~ exchange offer (~~as defined above~~prior to giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer)~~, in lieu~~ ; OS’ = the number of shares of Common Stock outstanding immediately after the expiration of such tender or exchange offer (after giving effect to the purchase or exchange of shares of Common Stock pursuant to such tender or exchange offer); and SP’ = the average of the ~~foregoing increase, the Purchaser will receive, for each $1,000 principal amount~~ Last Reported Sale Prices of the ~~Bond, at~~ Common Stock over the ~~sam~~ten consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or

Appears in 1 contract

Sources: Supplemental Indenture (M I Homes Inc)

Conversion Rate Adjustments. The Conversion Rate ~~will~~ shall be subject to ~~adjustments~~ adjustment from time to ~~time~~time only as set forth below; provided, ~~without duplication~~however, ~~upon~~ that the ~~occurrence~~ Company shall not make any adjustments to the Conversion Rate if Holders participate (as a result of holding the Notes, and at the same time as the holders of the Common Stock participate) in any of the ~~following events:~~transactions described in this Section 12.05 as if such Holders held a number of shares of Common Stock equal to the Conversion Rate immediately prior to the event that otherwise would result in a Conversion Rate adjustment, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder, without having to convert their Notes. (a) If the Company ~~(i)~~ issues ~~solely~~ shares of Common Stock as a dividend or distribution on ~~its~~ shares of Common Stock, ~~(ii) subdivides Common Stock~~ or ~~(iii) combines Common Stock~~if the Company effects a share split or share combination, the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: CR CR’ = CR0 ~~× OS~~ x OS’ OS0 where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ close of ~~Business~~ business on the Record Date for such dividend or distribution, or immediately prior to the ~~Open~~ open of ~~Business~~ business on the effective date of such ~~subdivision~~ share split or ~~combination of Common Stock~~share combination, as the case may be; CR CR’ = the new Conversion Rate in effect immediately after the ~~Close~~ close of ~~Business~~ business on the Record Date for such dividend or distribution, or immediately after the ~~Open~~ open of ~~Business~~ business on the effective date of such ~~subdivision~~ share split or ~~combination of Common Stock~~share combination, as the case may be; OS0 = the number of shares of the Common Stock outstanding immediately prior to the ~~Close~~ close of ~~Business~~ business on the Record Date for such dividend or distribution, or immediately prior to the ~~Open~~ open of ~~Business~~ business on the effective date of such ~~subdivision~~ share split or ~~combination of Common Stock~~share combination, as the case may be; and OS OS’ = the number of shares of the Common Stock ~~that would be~~ outstanding immediately after giving effect to such ~~dividend or~~ dividend, distribution, share split or ~~immediately after the effective date of such subdivision or combination of Common Stock, as the case may be~~share combination. Any adjustment made ~~under~~ pursuant to this Section ~~10.4(a~~12.05(a) ~~will~~ shall become effective immediately after (x) the ~~Close~~ close of ~~Business~~ business on the Record Date for such dividend or ~~distribution,~~ distribution or ~~immediately after~~ (y) the ~~Open~~ open of ~~Business~~ business on the ~~effective~~ date of on which such ~~subdivision~~ split or combination ~~of Common Stock~~becomes effective, as ~~the case may be~~applicable. If ~~such dividend, distribution, subdivision~~ any dividend or ~~combination~~ distribution described in this Section ~~10.4(a~~12.05(a) is declared but not so paid or made, the new Conversion Rate ~~will~~ shall be immediately readjusted, effective as of the date the ~~Company’s board~~ Board of ~~directors~~ Directors determines not to pay such dividend or distribution ~~or to effect such subdivision or combination,~~ to the Conversion Rate that would then be in effect if such dividend or distribution had not been ~~declared or such subdivision or combination had not been announced~~declared. (b) If ~~an Ex-Dividend Date occurs for a distribution~~ the Company distributes to all or substantially all holders of Common Stock of any ~~rights, options~~ rights or warrants entitling ~~such holders~~ them to purchase, for a period of not more than ~~sixty (60) calendar~~ 45 days ~~from~~ after the ~~announcement~~ declaration date for ~~such distribution to subscribe for or purchase~~ the distribution, shares of Common Stock ~~(or securities convertible into Common Stock),~~ at a price per share less than the average of the ~~Closing~~ Last Reported Sale Prices of the Common Stock for the ten ~~(10)~~ consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the ~~announcement~~ declaration date for such distribution, the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: CR CR’ = CR0 × x OS0 + X OS0 + Y where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ close of ~~Business~~ business on the Record Date for such distribution; CR CR’ = the new Conversion Rate in effect immediately after the ~~Close~~ close of ~~Business~~ business on the Record Date for such distribution; OS0 = the number of shares of the Common Stock outstanding immediately prior to the ~~Close~~ close of ~~Business~~ business on the Record Date for such distribution; X = the total number of shares of the Common Stock issuable pursuant to such ~~rights, options~~ rights or warrants; and Y = the number of shares of the Common Stock equal to the aggregate price payable to exercise such ~~rights, options~~ rights or warrants divided by the average of the ~~Closing~~ Last Reported Sale Prices of the Common Stock over the ten ~~(10)~~ consecutive Trading Day period ending on, and ~~including,~~ including the Trading Day immediately preceding the ~~announcement~~ declaration date for such distribution. For the purposes of this Section 12.05(b) in determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of the Common Stock at less than the Last Reported Sale Price per share of the Common Stock on the Trading Day immediately preceding the declaration date of such distribution, and in determining the aggregate exercise price payable for such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable upon exercise thereof, with the value of such consideration, if other than cash, as shall be determined in good faith by the Board of Directors. Any ~~adjustment~~ increase made under this Section ~~10.4(b~~12.05(b) will be made successively whenever any such ~~rights, options~~ rights or warrants are ~~issued~~ distributed and ~~will~~ shall become ~~effective~~ effectively immediately after the ~~Close~~ close of ~~Business~~ business on the Record ~~Date for such distribution~~Date. ~~To the extent that shares of Common Stock are~~ If any right or warrant described in this Section 12.05(b) is not ~~delivered after~~ exercised prior to the expiration of ~~such rights, options~~ the exercisability or ~~warrants, including because the distributed rights, options or warrants were not exercised~~convertibility thereof, the new Conversion Rate ~~will~~ shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the ~~distribution~~ issuance of such ~~rights, options~~ rights or warrants been made on the basis of delivery of only the number of shares of the Common Stock actually delivered. If such ~~rights, options~~ rights or warrants are not so distributed, the Conversion Rate ~~will~~ shall be ~~decreased~~ decreased, effective as of the date the Board of Directors determines not to distribute such rights or warrants, to the Conversion Rate that would then be in effect if the ~~Ex-Dividend~~ Record Date for ~~such~~ the distribution had not occurred. For purposes of this Section 10.4(b), in determining whether any rights, options or warrants entitle the Purchaser to subscribe for or purchase shares of Common Stock at a price that is less than the average of the Closing Sale Prices of the Common Stock over the applicable ten (10) consecutive Trading Day period, there will be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration if other than cash to be determined in good faith by the Company’s board of directors. (ic) If ~~an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of~~ the Company distributes 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, ~~evidences of its indebtedness or other assets or property of the Company~~ to all or substantially all holders of ~~the~~ Common ~~Stock~~ Stock, excluding: (~~excluding (A~~i) ~~dividends or distributions and rights~~dividends, ~~options~~ distributions, rights or warrants as to which an adjustment was effected ~~under Sections 10.4(a~~pursuant to Section 12.05(a) ~~or 10.4(b);~~ and Section 12.05(b) of this Eighteenth Supplemental Indenture; (Bii) dividends or distributions paid exclusively in cash ~~covered under~~ as to which an adjustment was effected pursuant to Section ~~10.4(d)~~12.05(d) below; ~~and~~ and (Ciii) ~~Spin~~spin-~~Offs~~offs to which the provisions set forth below in this Section 12.05(c) shall apply, (any of such shares of Capital Stock, evidences of indebtedness or other assets or property or rights, options or warrants to acquire Capital Stock or other securities of the Company, the “Distributed Property”), then the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: CR CR’ = CR0 × x ▇▇▇ ▇▇▇ – FMV where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ close of ~~Business~~ business on the Record Date for such distribution; CR CR’ = the new Conversion Rate in effect immediately after the ~~Close~~ close of ~~Business~~ business on the Record Date for such distribution; SP0 = the average of the ~~Closing~~ Last Reported Sale Prices of the Common Stock over the ten ~~(10)~~ consecutive Trading Day period ending ~~on,~~ on and ~~including,~~ 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 ~~Company’s board~~ Board of ~~directors~~Directors) of the ~~shares of capital stock, evidences of indebtedness, assets or property or rights, options or warrants~~ Distributed Property distributed with respect to each outstanding share of the Common Stock ~~as of the Open of Business~~ on the Ex-Dividend Date for such distribution. ~~Any adjustment made under~~ If the ~~above portion~~ Board of Directors determines the “FMV” (as defined above) of any distribution for purposes of this Section ~~10.4(c~~12.05(c) ~~will~~ by reference to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution. The adjustment described in the preceding paragraph of this Section 12.05(c) shall become effective immediately after the ~~Close~~ close of ~~Business~~ business on the Record Date for ~~such~~ the applicable distribution. No With respect to an adjustment pursuant to this Section 12.05(c) where there has been a distribution on the ~~above formula~~ 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 that are, or when issued, will ~~result~~ be, traded on a U.S. national securities exchange, (each, a “spin-off”) the Conversion Rate in ~~a decrease~~ effect immediately before 5:00 p.m., New York City time, on the tenth Trading Day immediately following, and including, the Ex-Dividend Date of the spin-off will be increased based on the following formula: CR’ = CR0 x FMV0 + MP0 MP0 where, CR0 = the Conversion ~~Rate~~Rate in effect immediately prior to the close of business on the tenth Trading Day immediately following, and including, the Ex-Dividend Date of the spin-off; CR’ = the new Conversion Rate in effect immediately after the close of business on the tenth Trading Day immediately following, and including, the Ex-Dividend Date of the spin-off; FMV0 = the average of the Last Reported Sale Prices of the capital stock or similar equity interest (determined as if references in the definition of “Last Reported Sale Price” to the Common Stock were to such capital stock or similar equity interest) distributed to holders of the Common Stock applicable to one share of the Common Stock over the first ten consecutive Trading Day period immediately following, and including, the Ex-Dividend Date of the spin-off; and MP0 = the average of the Last Reported Sale Prices of the Common Stock over the first ten consecutive Trading Day period immediately following, and including, the Ex-Dividend Date of the spin-off. ~~However~~The adjustment described in the preceding paragraph of this Section 12.05(c) shall occur immediately after the close of business on the tenth Trading Day immediately following, if and including, the Ex-Dividend Date of the spin-off; provided that, for purposes of determining the Conversion Rate in respect of any conversion during the ten Trading Days following the effective date of any spin-off, references within the portion of this Section 12.05(c) related to “spin-offs” to ten trading days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such spin-off and the relevant Conversion Date. If any dividend or distribution described in this Section 12.05(c) is declared but not so paid or made, the Conversion Rate ~~will~~ shall be ~~readjusted~~ decreased to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, the Purchaser will 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 Bond, 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 purposes of this Section ~~10.4(c)(i~~12.05(c) (and subject in all ~~respects~~ respect to Section ~~10.4(f~~12.11 of this Eighteenth Supplemental Indenture)~~): (1) Rights~~, rights, options or warrants distributed by the Company to all ~~or substantially all~~ holders of ~~the~~ its Common Stock entitling them to subscribe for or purchase shares of the Company’s ~~capital stock~~Capital Stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”): ): (ai) are deemed to be transferred with such shares of the Common Stock; ; (bii) are not exercisable; ~~and~~ and (ciii) are also issued in respect of future issuances of the Common Stock, ~~will~~ shall be deemed not to have been distributed for purposes of this Section ~~10.4(c~~12.05(c) (and no adjustment to the Conversion Rate under this Section ~~10.4(c~~12.05(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants ~~will~~ shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate ~~will~~ shall be made under this Section ~~10.4(c~~12.05(c)~~. (2)~~ . If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the ~~Closing~~date of this Eighteenth Supplemental Indenture, are subject to events, upon the occurrence of which such 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 ~~will~~ shall be deemed to be the date of distribution and ~~the~~ Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants ~~will~~ 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, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding ~~clause (2~~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 ~~10.4(c~~12.05(c) was made: , (a1) in the case of any such rights, options or warrants that ~~will~~ shall all have been redeemed or ~~repurchased~~ purchased without exercise by any holders thereof, upon such final redemption or ~~repurchase~~ purchase (x) the Conversion Rate ~~will~~ shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate ~~will~~ shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash ~~distribution pursuant to Section 10.4(d)~~distribution, equal to the per share redemption or ~~repurchase~~ purchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or ~~repurchase; and~~ purchase, and (b2) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate ~~will~~ shall be readjusted as if such rights, options and warrants had not been issued. (4) For purposes of Sections 10.4(a), 10.4(b) and 10.4(c), if any dividend or distribution to which this Section 10.4(c) is applicable includes one or both of: (a) a dividend or distribution of shares of Common Stock to which Section 10.4(a) is applicable (the “Clause A Distribution”); or (b) an issuance of rights, options or warrants to which Section 10.4(b) is applicable (the “Clause B Distribution”), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2) the Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then be made, except that, if determined by the Company (A) the “Record Date” of the Clause A Distribution and the Clause B Distribution will be deemed to be the Record Date of the Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding immediately prior to the Close of Business on the Record Date or immediately prior to the Open of Business on such effective date” within the meaning of Section 10.4(a) or “outstanding immediately prior to the Close of Business on the Record Date” within the meaning of Section 10.4(b). (ii) With respect to an adjustment pursuant to this Section 10.4(c) where there has been an Ex-Dividend Date for a dividend or other distribution on the Common Stock of shares of capital stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit, that are, or, when issued, will be, listed or admitted for trading on a United States national securities exchange (a “Spin-Off”), the Conversion Rate will be calculated 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 Record Date for the Spin-Off; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for the Spin-Off; FMV = the 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 (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first ten (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 Closing Sale Prices of the Common Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph of this Section 10.4(c) will 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 10.4(c)(ii) related to ten (10) Trading Days will 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~~ any cash dividend or distribution is made to all or substantially all holders of the Common ~~Stock (other than any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up)~~Stock, the Conversion Rate will be ~~recalculated~~ adjusted based on the following formula: CR CR’ = CR0 × x ▇▇▇ ▇▇▇ – C where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ close of ~~Business~~ business on the Record Date for such dividend or distribution; CR CR’ = the new Conversion Rate in effect immediately after the ~~Close~~ close of ~~Business~~ business on the Record Date for such dividend or distribution; SP0 = the ~~average of the Closing~~ Last Reported Sale ~~Prices~~ Price of the Common Stock ~~over the ten (10) consecutive Trading Day period ending on, and including,~~ on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share ~~of Common Stock~~ the Company ~~pays, or distributes,~~ distributes to ~~all or substantially all~~ holders of ~~the~~ Common Stock. ~~Any~~ Such an adjustment to the Conversion Rate made ~~under~~ pursuant to this Section ~~10.4(d~~12.05(d) ~~will~~ shall become effective immediately after the ~~Close~~ close of ~~Business~~ business on the Record Date for ~~such~~ the applicable dividend or distribution. ~~No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if~~ If any dividend or distribution described in this Section ~~10.4(d~~12.05(d) is declared but not so paid or made, the new Conversion Rate ~~will~~ shall be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared~~. Notwithstanding~~ . (e) If the ~~foregoing~~Company or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Common Stock, ~~if “C”~~ to the extent that the cash and value of any other consideration included in the payment per share of the Common Stock exceeds the Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula: CR’ = CR0 x AC + (SP’ x OS’) OS0 x SP’ where, CR0 = the Conversion Rate in effect immediately prior to the close of business on the last Trading Day of the ten consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires; CR’ = the new Conversion Rate in effect immediately following the close of business on the last Trading Day of the ten consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as ~~defined above~~determined in good faith by the Board of Directors) ~~is equal~~ paid or payable for shares of Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the expiration of such tender or ~~greater than “SP0”~~ exchange offer (~~as defined above),~~ prior to giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in ~~lieu of the foregoing increase, the Purchaser will receive, for each $1,000 principal amount of the Bond, at the sam~~such tender or exc

Appears in 1 contract

Sources: Eighteenth Supplemental Indenture (Standard Pacific Corp /De/)

Conversion Rate Adjustments. The Conversion Rate will be subject to adjustments from time to time, without duplication, upon the occurrence of any of the following events: (a) If the Company (i) issues solely shares of Company Common Stock as a dividend or distribution on its shares of Company Common Stock, (ii) subdivides Company Common Stock or (iii) combines Company Common Stock, the Conversion Rate will be calculated based on the following formula: ~~CR = CR0 × OS OS0~~ where, CR0 = the Conversion Rate in effect 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 Company 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 dividend or distribution, or immediately after the Open of Business on the effective date of such subdivision or combination of Company Common Stock, as the case may be; OS0 = the number of shares of Company 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 Company Common Stock, as the case may be; and OS = the number of shares of Company 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 Company Common Stock, as the case may be. Any adjustment made under this Section 10.4(a) will 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 Company Common Stock, as the case may be. If such dividend, distribution, subdivision or combination described in this Section 10.4(a) is declared but not so paid or made, the Conversion Rate will be immediately readjusted, effective as of the date the Company’s board of directors determines not to pay such dividend or distribution or to effect such subdivision or combination, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared or such subdivision or combination had not been announced. (b) If an Ex-Dividend Date occurs for a distribution to all or substantially all holders of Company Common Stock of any rights, options or warrants entitling such holders for a period of not more than sixty (60) calendar days from the announcement date for such distribution to subscribe for or purchase shares of Company Common Stock (or securities convertible into Company Common Stock), at a price per share less than the average of the Closing Sale Prices of the Class A Common Stock for the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution, the Conversion Rate will be calculated based on the following 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 distribution; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such distribution; OS0 = the number of shares of Company Common Stock outstanding immediately prior to the Close of Business on the Record Date for such distribution; X = the total number of shares of Company Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Company Common Stock equal to the aggregate price payable to exercise such rights, options or warrants divided by the average of the Closing Sale Prices of Class A Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution. Any adjustment made under this Section 10.4(b) will be made successively whenever any such rights, options or warrants are issued and will become effective immediately after the Close of Business on the Record Date for such distribution. To the extent that shares of Company Common Stock are not delivered after the expiration of such rights, options or warrants, including because the distributed rights, options or warrants were not exercised, the Conversion Rate will be decreased to the Conversion Rate that would then be in effect had the increase with respect to the distribution of such rights, options or warrants been made on the basis of delivery of only the number of shares of Company Common Stock actually delivered. If such rights, options or warrants are not so distributed, the Conversion Rate will be decreased to the Conversion Rate that would then be in effect if the Ex-Dividend Date for such distribution had not occurred. For purposes of this Section 10.4(b), in determining whether any rights, options or warrants entitle the Purchaser to subscribe for or purchase shares of Company Common Stock at a price that is less than the average of the Closing Sale Prices of ~~the~~ Class A Common Stock over the applicable ten (10) consecutive Trading Day period, there will be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration if other than cash to be determined in good faith by the Company’s board of directors. (i) 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, evidences of its indebtedness or other assets or property of the Company to all or substantially all holders of the Company Common Stock (excluding (A) dividends or distributions and rights, options or warrants as to which an adjustment was effected under Sections 10.4(a) or 10.4(b); (B) dividends or distributions paid exclusively in cash covered under Section 10.4(d); and (C) Spin-Offs), then the Conversion Rate will be calculated based on the following formula: ~~CR = CR0 × ▇▇▇ ▇▇▇ – 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~~ Class A Common Stock over the ten (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 Company’s 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 Company Common Stock as of the Open of Business on the Ex-Dividend Date for such distribution. Any adjustment made under the above portion of this Section 10.4(c) will 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 will 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, the Purchaser will receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of ~~the~~ Company Common Stock, without having to convert its ~~Bond~~Note(s), the amount and kind of the Relevant Distribution that such holder would have received if such holder owned a number of shares of Company Common Stock equal to the Conversion Rate on the Record Date for the distribution. For purposes of this Section 10.4(c)(i) (and subject in all respects to Section 10.4(f)): (1) Rights, options or warrants distributed by the Company to all or substantially all holders of ~~the~~ Company Common Stock entitling them to subscribe for or purchase shares of the Company’s capital stock, including Company Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (a) are deemed to be transferred with such shares of ~~the~~ Company Common Stock; (b) are not exercisable; and (c) are also issued in respect of future issuances of ~~the~~ Company Common Stock, will be deemed not to have been distributed for purposes of this Section 10.4(c) (and no adjustment to the Conversion Rate under this Section 10.4(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants will be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate will be made under this Section 10.4(c). (2) If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the Closing, are subject to events, upon the occurrence of which such 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 will be deemed to be the date of distribution and the Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants will 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, options or warrants, or any Trigger Event or other event of the type described in the immediately preceding clause (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 10.4(c) was made: (a) in the case of any such rights, options or warrants that will all have been redeemed or repurchased without exercise by any holders thereof, upon such final redemption or repurchase (x) the Conversion Rate will be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate will then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution pursuant to Section 10.4(d), equal to the per share redemption or repurchase price received by a holder or holders of Company Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Company Common Stock as of the date of such redemption or repurchase; and (b) in the case of such rights, options or warrants that have expired or been terminated without exercise by any holders thereof, the Conversion Rate will be readjusted as if such rights, options and warrants had not been issued. (4) For purposes of Sections 10.4(a), 10.4(b) and 10.4(c), if any dividend or distribution to which this Section 10.4(c) is applicable includes one or both of: (a) a dividend or distribution of shares of Company Common Stock to which Section 10.4(a) is applicable (the “Clause A Distribution”); or (b) an issuance of rights, options or warrants to which Section 10.4(b) is applicable (the “Clause B Distribution”), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2) the Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then be made, except that, if determined by the Company (A) the “Record Date” of the Clause A Distribution and the Clause B Distribution will be deemed to be the Record Date of the Clause C Distribution and (B) any shares of Company Common Stock included in the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding immediately prior to the Close of Business on the Record Date or immediately prior to the Open of Business on such effective date” within the meaning of Section 10.4(a) or “outstanding immediately prior to the Close of Business on the Record Date” within the meaning of Section 10.4(b). (ii) With respect to an adjustment pursuant to this Section 10.4(c) where there has been an Ex-Dividend Date for a dividend or other distribution on ~~the~~ Company 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, that are, or, when issued, will be, listed or admitted for trading on a United States national securities exchange (a “Spin-Off”), the Conversion Rate will be calculated 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 Record Date for the Spin-Off; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for the Spin-Off; FMV = the average of the Closing Sale Prices of the capital stock or similar equity interest distributed to holders of Company Common Stock applicable to one share of Company Common Stock (determined by reference to the definition of “Closing Sale Price” as if references therein to Company Common Stock were to such capital stock or similar equity interest) over the first ten (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 Closing Sale Prices of ~~the~~ Class A Common Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph of this Section 10.4(c) will 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 10.4(c)(ii) related to ten (10) Trading Days will 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 distribution to all or substantially all holders of ~~the~~ Company Common Stock (other than any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up), the Conversion Rate will be recalculated based on the following formula: ~~CR = CR0 × ▇▇▇ ▇▇▇ – C~~ 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~~ Class A Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and C = the amount in cash per share of Company Common Stock the Company pays, or distributes, to all or substantially all holders of ~~the~~ Company Common Stock. Any adjustment made under this Section 10.4(d) will become effective immediately after the Close of Business on the Record Date for such dividend or distribution. No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if any dividend or distribution described in this Section 10.4(d) is declared but not so paid or made, the Conversion Rate will 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 “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, the Purchaser will receive, for each $1,000 principal amount of the Bond, at the sam

Appears in 1 contract

Sources: Convertible Note Purchase Agreement (Berkshire Grey, Inc.)

Conversion Rate Adjustments. (a) The Conversion Rate ~~will~~ shall be ~~subject to adjustments~~ adjusted from time to ~~time, without duplication, upon~~ time by the ~~occurrence of any of~~ Company for the following events: (a1) If the ~~Company (i) issues solely shares~~ issuances to all or substantially all holders of the Common Stock as a dividend or distribution on ~~its shares of~~ the Common Stock, ~~(ii) subdivides Common Stock~~ or ~~(iii) combines~~ certain subdivisions or combinations of the Common Stock, in which event the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: ~~CR = CR0 × OS OS0~~ where, CR0 = the Conversion Rate in effect ~~immediately prior to the Close of Business~~ at 5:00 p.m., New York City time, on the Record Date for such dividend or ~~distribution,~~ 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; CR~~ CR1 = the Conversion Rate in effect immediately after the ~~Close of Business on the~~ Record Date for such dividend or ~~distribution,~~ 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;~~ OS0 = the number of shares of Common Stock outstanding ~~immediately prior to the Close of Business~~ at 5:00 p.m., New York City time, on the Record Date for such dividend or ~~distribution,~~ 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~~ OS1 = the number of shares of Common Stock that would be outstanding immediately after, and solely as a result of, such event. Such adjustment shall become effective immediately after ~~giving effect to~~ the Record Date for such dividend or ~~distribution,~~ distribution or ~~immediately after~~ the effective date of such subdivision or ~~combination of Common Stock, as the case may be~~combination. ~~Any adjustment made under this Section 10.4(a) will become effective immediately after the Close of Business on the Record Date for such~~ If any dividend or ~~distribution, or immediately after~~ distribution of the ~~Open of Business on the effective date of such subdivision or combination of Common Stock, as the case may be. If such dividend, distribution, subdivision or combination~~ type described in Section 10.05(a)(1) of this ~~Section 10.4(a)~~ First Supplemental Indenture is declared but not so paid or made, the Conversion Rate will be immediately readjusted, effective as of the date the Company’s board of directors determines not to pay such dividend or distribution or to effect such subdivision or combination, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared or such subdivision or combination had not been announced. (b) If an Ex-Dividend Date occurs for a distribution to all or substantially all holders of Common Stock of any rights, options or warrants entitling such holders for a period of not more than sixty (60) calendar days from the announcement date for such distribution to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock), at a price per share less than the average of the Closing Sale Prices of the Common Stock for the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution, the Conversion Rate will be calculated based on the following 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 distribution; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for such distribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the Close of Business on the Record Date for such distribution; X = the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants divided by the average of the Closing Sale Prices of Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution. Any adjustment made under this Section 10.4(b) will be made successively whenever any such rights, options or warrants are issued and will become effective immediately after the Close of Business on the Record Date for such distribution. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants, including because the distributed rights, options or warrants were not exercised, the Conversion Rate will be decreased to the Conversion Rate that would then be in effect had the increase with respect to the distribution of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so distributed, the Conversion Rate will be decreased to the Conversion Rate that would then be in effect if the Ex-Dividend Date for such distribution had not occurred. For purposes of this Section 10.4(b), in determining whether any rights, options or warrants entitle the Purchaser to subscribe for or purchase shares of Common Stock at a price that is less than the average of the Closing Sale Prices of the Common Stock over the applicable ten (10) consecutive Trading Day period, there will be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration if other than cash to be determined in good faith by the Company’s board of directors. (i) 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, evidences of its indebtedness or other assets or property of the Company to all or substantially all holders of the Common Stock (excluding (A) dividends or distributions and rights, options or warrants as to which an adjustment was effected under Sections 10.4(a) or 10.4(b); (B) dividends or distributions paid exclusively in cash covered under Section 10.4(d); and (C) Spin-Offs), then the Conversion Rate will be calculated based on the following formula: CR = CR0 × ▇▇▇ ▇▇▇ – 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 ten (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 Company’s 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 adjustment made under the above portion of this Section 10.4(c) will 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 will 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, the Purchaser will 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 Bond, 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 purposes of this Section 10.4(c)(i) (and subject in all respects to Section 10.4(f)): (1) Rights, options or warrants distributed by the Company to all or substantially all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s capital stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (a) are deemed to be transferred with such shares of the Common Stock; (b) are not exercisable; and (c) are also issued in respect of future issuances of the Common Stock, will be deemed not to have been distributed for purposes of this Section 10.4(c) (and no adjustment to the Conversion Rate under this Section 10.4(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants will be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate will be made under this Section 10.4(c). (2) If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the Closing, are subject to events, upon the occurrence of which such 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 will be deemed to be the date of distribution and the Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants will 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, options or warrants, or any Trigger Event or other event of the type described in the immediately preceding clause (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 10.4(c) was made: (a) in the case of any such rights, options or warrants that will all have been redeemed or repurchased without exercise by any holders thereof, upon such final redemption or repurchase (x) the Conversion Rate will be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate will then shall again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution pursuant to Section 10.4(d), equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase; and (b) in the case of such rights, options or warrants that have expired or been terminated without exercise by any holders thereof, the Conversion Rate will be readjusted as if such rights, options and warrants had not been issued. (4) For purposes of Sections 10.4(a), 10.4(b) and 10.4(c), if any dividend or distribution to which this Section 10.4(c) is applicable includes one or both of: (a) a dividend or distribution of shares of Common Stock to which Section 10.4(a) is applicable (the “Clause A Distribution”); or (b) an issuance of rights, options or warrants to which Section 10.4(b) is applicable (the “Clause B Distribution”), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2) the Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then be made, except that, if determined by the Company (A) the “Record Date” of the Clause A Distribution and the Clause B Distribution will be deemed to be the Record Date of the Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding immediately prior to the Close of Business on the Record Date or immediately prior to the Open of Business on such effective date” within the meaning of Section 10.4(a) or “outstanding immediately prior to the Close of Business on the Record Date” within the meaning of Section 10.4(b). (ii) With respect to an adjustment pursuant to this Section 10.4(c) where there has been an Ex-Dividend Date for a dividend or other distribution on the Common Stock of shares of capital stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit, that are, or, when issued, will be, listed or admitted for trading on a United States national securities exchange (a “Spin-Off”), the Conversion Rate will be calculated 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 Record Date for the Spin-Off; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for the Spin-Off; FMV = the 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 (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first ten (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 Closing Sale Prices of the Common Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph of this Section 10.4(c) will 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 10.4(c)(ii) related to ten (10) Trading Days will 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 distribution to all or substantially all holders of the Common Stock (other than any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up), the Conversion Rate will be recalculated based on the following formula: CR = CR0 × ▇▇▇ ▇▇▇ – C 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 ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and C = the amount in cash per share of Common Stock the Company pays, or distributes, to all or substantially all holders of the Common Stock. Any adjustment made under this Section 10.4(d) will become effective immediately after the Close of Business on the Record Date for such dividend or distribution. No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if any dividend or distribution described in this Section 10.4(d) is declared but not so paid or made, the Conversion Rate will be readjusted adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared~~. Notwithstanding~~ . (2) the ~~foregoing~~issuances to all or substantially all holders of the Common Stock of certain rights or warrants entitling them to purchase, ~~if “C” (as defined above) is~~ for a period of 45 calendar days or less, shares of the Common Stock at a price less than the Current Market Price of Common Stock, in which event the Conversion Rate will be adjusted based on the following 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 ~~greater~~ 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 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 or shares of Common Stock are otherwise not delivered pursuant to such rights or warrants upon the exercise of such rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common 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 ~~“SP0”~~ 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 ~~defined above~~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 dividend or distribution is not so made, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such distribution had not been declared. (4) dividends or other distributions consisting exclusively of cash to all or substantially all holders of Common Stock (other than dividends or distributions made in connection with the Company’s liquidation, dissolution or winding-up or upon a consolidation or merger, sale, lease, transfer, conveyance or other disposition), in ~~lieu~~ 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 C = the amount in cash per share the Company distributes to holders of Common Stock. Such adjustment shall become effective immediately after the Record Date for such dividend or distribution. In the event that such distribution is not 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 at 5:00 p.m., New York City time, on the Expiration Date CR1 = the Conversion Rate in effect immediately after the Expiration Date FMV = the Fair Market Value, on the Expiration Date, of the ~~foregoing~~ aggregate value of all cash and any other consideration paid or payable 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 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 ~~Purchaser~~ effectiveness of any such increase, and such notice shall state the increased Conversion Rate and the period during which it will ~~receive~~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 ~~each $1,000 principal amount~~ 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 ~~Bond~~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) 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 ~~sam~~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 10.06 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 Company may elect to defer until the 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

Sources: First Supplemental Indenture (Covanta Holding Corp)

Conversion Rate Adjustments. The Conversion Rate ~~will~~ shall be ~~subject to adjustments~~ adjusted, from time to ~~time, without duplication~~time by the Company, upon the occurrence of any of the following events:, except that the Company shall not make any adjustments to the Conversion Rate if Holders of the Notes have the right to participate (other than in the case of a share split or share combination), at the same time and upon the same terms as holders of Common Stock and solely as a result of holding the Notes, in any of the transactions described in this Section 4.05, without having to convert their Notes as if they held a number of shares of Common Stock equal to the Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder. (a) If the Company ~~(i)~~ exclusively issues ~~solely~~ shares of Common Stock as a dividend or distribution on ~~its~~ shares of its Common Stock, ~~(ii) subdivides Common Stock~~ or ~~(iii) combines Common Stock~~if the Company effects a share split or share combination, the Conversion Rate ~~will~~ shall be ~~calculated~~ adjusted based on the following formula: CR CR1 = CR0 × OS OS1 OS0 where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date ~~for~~ of such dividend or distribution, or immediately prior to the ~~Open~~ open of ~~Business~~ business on the effective date of such ~~subdivision~~ share split or ~~combination of Common Stock~~share combination, as ~~the case may be~~applicable; CR CR1 = the Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on ~~the Record~~ such Ex-Dividend 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~~date; OS0 = the number of shares of Common Stock outstanding immediately prior to the ~~Close~~ open of ~~Business~~ business on ~~the Record~~ such Ex-Dividend 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~~date; and OS OS1 = the number of shares of Common Stock ~~that would be~~ outstanding immediately after giving effect to such ~~dividend or~~ dividend, distribution, share split or ~~immediately after the effective date of such subdivision or combination of Common Stock, as the case may be~~share combination. Any adjustment made under this Section ~~10.4(a~~4.05(a) ~~will~~ shall become effective immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such dividend or distribution, or immediately after the ~~Open~~ open of ~~Business~~ business on the effective date of for such ~~subdivision~~ share split or ~~combination of Common Stock~~share combination, as ~~the case may be~~applicable. If ~~such dividend, distribution, subdivision~~ any dividend or ~~combination~~ distribution of the type described in this Section ~~10.4(a~~4.05(a) is declared but not so paid or made, the Conversion Rate ~~will~~ shall be immediately readjusted, effective as of the date the ~~Company’s board~~ Board of ~~directors~~ Directors determines not to pay such dividend or ~~distribution or to effect such subdivision or combination~~distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been ~~declared~~ declared. The Company shall not pay any dividend or ~~such subdivision or combination had not been announced~~make any distribution on its Common Stock held in treasury, if any. (b) If ~~an Ex-Dividend Date occurs for a distribution~~ the Company issues to all or substantially all holders of its Common Stock of any rights, options or warrants entitling ~~such holders~~ them, for a period of not more than ~~sixty (60)~~ 45 calendar days ~~from~~ after the announcement date ~~for~~ of such ~~distribution~~ issuance, to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock),~~ at a price per share that is less than the average of the ~~Closing~~ Last Reported Sale Prices of the Common Stock for the ~~ten (10)~~ 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement ~~date for~~ of such ~~distribution~~issuance, the Conversion Rate ~~will~~ shall be ~~calculated~~ increased based on the following formula: CR CR1 = CR0 × OS0 + X OS0 + Y where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such ~~distribution~~issuance; CR CR1 = the Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on ~~the Record Date for~~ such ~~distribution~~Ex-Dividend Date; OS0 = the number of shares of Common Stock outstanding immediately prior to the ~~Close~~ open of ~~Business~~ business on ~~the Record Date for~~ such ~~distribution~~Ex-Dividend Date; X = the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or ~~warrants~~ warrants, divided by the average of the ~~Closing~~ Last Reported Sale Prices of the Common Stock over the ~~ten (10)~~ 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement ~~date for~~ of the issuance of such ~~distribution~~rights, options or warrants. Any ~~adjustment~~ increase made under this Section ~~10.4(b~~4.05(b) ~~will~~ shall be made successively whenever any such rights, options or warrants are issued and ~~will~~ shall become effective immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such ~~distribution~~issuance. To the extent that shares of the Common Stock are not delivered after the expiration of such rights, options or warrants, ~~including because the distributed rights, options or warrants were not exercised,~~ the Conversion Rate ~~will~~ shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the ~~distribution~~ issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so ~~distributed~~issued, the Conversion Rate ~~will~~ shall be decreased to the Conversion Rate that would then be in effect if ~~the~~ such Ex-Dividend Date for such ~~distribution~~ issuance had not occurred. For purposes of this Section ~~10.4(b~~4.05(b) and Section 4.01(d)(i), in determining whether any rights, options or warrants entitle the ~~Purchaser~~ holders to subscribe for or purchase shares of the Common Stock at ~~a price that is~~ less than ~~the~~ such average of the ~~Closing~~ Last Reported Sale Prices of the Common Stock ~~over~~ for the ~~applicable ten (10)~~ 10 consecutive Trading Day ~~period~~period ending on, and including, the Trading Day immediately preceding the date of announcement for such issuance, and in determining the aggregate offering price of such shares of Common Stock, there ~~will~~ shall be taken into account any consideration received by the Company ~~receives~~ for such rights, options or warrants 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 ~~Company’s board~~ Board of ~~directors~~Directors. The Company shall not issue any such rights, options or warrants in respect of its Common Stock held in treasury, if any. (ic) If ~~an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of~~ the Company distributes shares of ~~the Company’s capital stock~~its Capital Stock, evidences of ~~the Company’s~~ its indebtedness or other assets or property of the Company or rights, options or warrants to acquire ~~the Company’s capital stock~~ Capital Stock or other securities, ~~evidences of its indebtedness or other assets or property of the Company~~ to all or substantially all holders of the Common ~~Stock (~~Stock, excluding (Ai) ~~dividends~~ dividends, distributions or ~~distributions and rights~~issuances covered in Section 4.05(a), ~~options or warrants as to which an adjustment was effected under Sections 10.4(a~~Section 4.05(b) or ~~10.4(b~~Section 4.05(e); , (Bii) dividends or distributions paid exclusively in cash covered ~~under~~ in Section ~~10.4(d);~~ 4.05(d) and (Ciii) Spin-~~Offs~~Offs as to which the provisions set forth below in this Section 4.05(c) shall apply (any of such shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire Capital Stock or other securities, the “Distributed Property”), then the Conversion Rate ~~will~~ shall be ~~calculated~~ increased based on the following formula: CR CR1 = CR0 × ~~▇▇▇ ▇▇▇~~ SP0 SP0 – FMV where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such distribution; CR CR1 = the Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on ~~the Record Date for~~ such ~~distribution~~Ex-Dividend Date; SP0 = the average of the ~~Closing~~ Last Reported Sale Prices of the Common Stock over the ~~ten (10)~~ 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 ~~Company’s board~~ Board of ~~directors~~Directors) of the ~~shares of capital stock, evidences of indebtedness, assets or property or rights, options or warrants distributed~~ Distributed Property with respect to each outstanding share of the Common Stock ~~as of the Open of Business~~ on the Ex-Dividend Date for such distribution. Any ~~adjustment~~ increase made under the ~~above~~ portion of this Section ~~10.4(c~~4.05(c) ~~will~~ above shall become effective immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such distribution. ~~No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if~~ If such distribution is not so paid or made, the Conversion Rate ~~will~~ shall be ~~readjusted~~ decreased to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, ~~the Purchaser will~~ 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 Bond~~Stock receive the Distributed Property, the amount and kind of ~~the Relevant Distribution that~~ Distributed Property such ~~holder~~ Holder would have received if such ~~holder~~ Holder owned a number of shares of Common Stock equal to the Conversion Rate in effect on the ~~Record~~ Ex-Dividend Date for the distribution. ~~For purposes~~ If the Board of ~~this Section 10.4(c)(i~~Directors determines the “FMV” (as defined above) ~~(and subject in all respects to Section 10.4(f)): (1) Rights, options or warrants distributed by the Company to all or substantially all holders~~ of the Common Stock entitling them to subscribe for or purchase shares of the Company’s capital stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (a) are deemed to be transferred with such shares of the Common Stock; (b) are not exercisable; and (c) are also issued in respect of future issuances of the Common Stock, will be deemed not to have been distributed any distribution for purposes of this Section ~~10.4(c~~4.05(c) ~~(and no adjustment~~ by reference to the ~~Conversion Rate under this Section 10.4(c) will be required) until~~ actual or when-issued trading market for any securities, it shall in doing so consider the ~~occurrence~~ prices in such market over the same period used in computing the Last Reported Sale Prices of the ~~earliest Trigger Event, whereupon such rights, options or warrants will be deemed to have been distributed and an appropriate adjustment (if any is required) to~~ Common Stock over the ~~Conversion Rate will be made under this Section 10.4(c). (2) If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to~~ 10 consecutive Trading Day period ending on the Closing, are subject to events, upon the occurrence of which such 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 will be deemed to be the date of distribution and the Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants will 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, options or warrants, or any Trigger Event or other event of the type described in the Trading Day immediately preceding ~~clause (2) with respect thereto that was counted~~ the Ex-Dividend Date for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 10.4(c) was made: (a) in the case of any such rights, options or warrants that will all have been redeemed or repurchased without exercise by any holders thereof, upon such final redemption or repurchase (x) the Conversion Rate will be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate will then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution pursuant to Section 10.4(d), equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase; and (b) in the case of such rights, options or warrants that have expired or been terminated without exercise by any holders thereof, the Conversion Rate will be readjusted as if such rights, options and warrants had not been issued. (4) For purposes of Sections 10.4(a), 10.4(b) and 10.4(c), if any dividend or distribution to which this Section 10.4(c) is applicable includes one or both of: (a) a dividend or distribution of shares of Common Stock to which Section 10.4(a) is applicable (the “Clause A Distribution”); or (b) an issuance of rights, options or warrants to which Section 10.4(b) is applicable (the “Clause B Distribution”), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2) the Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then be made, except that, if determined by the Company (A) the “Record Date” of the Clause A Distribution and the Clause B Distribution will be deemed to be the Record Date of the Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding immediately prior to the Close of Business on the Record Date or immediately prior to the Open of Business on such effective date” within the meaning of Section 10.4(a) or “outstanding immediately prior to the Close of Business on the Record Date” within the meaning of Section 10.4(b). (ii) . With respect to an adjustment pursuant to this Section ~~10.4(c~~4.05(c) where there has been ~~an Ex-Dividend Date for~~ a payment of a dividend or other distribution on the Common Stock of shares of ~~capital stock~~ Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business ~~unit~~unit of the Company, that are, or, when issued, will be, listed or admitted for trading on a ~~United States~~ U.S. national securities exchange (a “Spin-Off”), the Conversion Rate ~~will~~ shall be ~~calculated~~ increased based on the following formula: CR CR1 = CR0 × ~~FMV~~ FMV0 + MP0 MP0 where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for ~~the~~ such Spin-Off; CR CR1 = the Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for ~~the~~ such Spin-Off; ~~FMV~~ FMV0 = the average of the ~~Closing~~ Last Reported Sale Prices of the ~~capital stock~~ Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of the Common Stock (determined by reference to the definition of ~~“Closing~~ Last Reported Sale ~~Price”~~ Price as if references therein to Common Stock were to such ~~capital stock~~ Capital Stock or similar equity interest) over the first ~~ten (10)~~ 10 consecutive Trading Day period ~~commencing on~~after, and including, the ~~effective date for~~ Ex-Dividend Date of the Spin-Off (~~such period,~~ the “Valuation Period”); and MP0 = the average of the ~~Closing~~ Last Reported Sale Prices of the Common Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph ~~of this Section 10.4(c) will be determined~~ shall occur on the last ~~day~~ Trading 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~~ Period; provided that (x) in respect of any conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the Valuation Period, the reference in the preceding paragraph to “10” shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date for such Spin-Off and such Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Notes for which Cash Settlement or Combination Settlement is applicable, subject to the immediately preceding sentence, for any Trading Day that falls within the relevant Observation Period for ~~any~~ such conversion and within the Valuation Period, the reference to “10” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date for such Spin-~~Off~~Off and such Trading Day in determining the Conversion Rate as of such Trading Day. Further if the Ex-Dividend Date for such Spin-Off is after the 10th Trading Day immediately preceding, and including, the end of any Observation Period in respect of a conversion of Notes, references ~~within~~ to “10” or “10th” in the preceding paragraph and this ~~Section 10.4(c)(ii) related to ten (10) Trading Days will~~ paragraph , shall be deemed to be ~~replaced~~ replaced, solely in respect of that conversion, with such lesser number of Trading Days as have elapsed from, and including, the ~~effective date~~ Ex-Dividend Date for such Spin-Off to, ~~but excluding~~and including, the ~~relevant~~ last Trading Day of such Observation Period. If the distribution constituting the Spin-Off is not so paid or made, the Conversion ~~Date~~Rate shall be decreased to the Conversion Rate that would then be in effect if such distribution had not been declared. (d) If ~~an Ex-Dividend Date occurs for a~~ any cash dividend or distribution is made to all or substantially all holders of the Common Stock (other than ~~any dividend or distribution~~ distributions described in ~~connection with the Company’s liquidation, dissolution or winding up~~Section 4.05(e)), the Conversion Rate ~~will~~ shall be ~~recalculated~~ adjusted based on the following formula: CR CR1 = CR0 × ~~▇▇▇ ▇▇▇~~ SP0 SP0 – C where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such dividend or distribution; CR CR1 = the Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such dividend or distribution; SP0 = the ~~average of the Closing~~ Last Reported Sale ~~Prices~~ Price of the Common Stock ~~over the ten (10) consecutive Trading Day period ending on, and including,~~ on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share ~~of Common Stock~~ the Company ~~pays, or distributes,~~ distributes to ~~all or substantially all~~ holders of ~~the~~ its Common Stock. Any ~~adjustment made under~~ increase pursuant to this Section ~~10.4(d~~4.05(d) ~~will~~ shall become effective immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such dividend or distribution. ~~No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if any~~ If such dividend or distribution ~~described in this Section 10.4(d)~~ is ~~declared but~~ not so ~~paid or made~~paid, the Conversion Rate ~~will~~ shall be ~~readjusted~~ decreased, effective as of the date the Board of Directors determines not to make or pay such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, ~~the Purchaser will~~ each Holder of a Note shall receive, for each $1,000 principal amount of ~~the Bond~~Notes, at the ~~sam~~same time and upon the same terms as holders of shares of the Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the Ex-Dividend Date for such cash dividend or distribution. (e) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the Common Stock (subject to the tender offer rules under the Exchange Act then applicable), to the extent that the cash and value of any other consideration included in the payment per share of the Common Stock exceeds the average of the Last Reported Sale Prices of Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula: CR1 = CR0 × AC + (SP1 × OS1) OS0 × SP1 where, CR0 = the Conversion Rate in effect immediately prior to the open of business on the Trading Day next succeeding the date such tender or exchange offer expires; CR1 = the Conversion Rate in effect immediately after the open of business on the Trading Day next succeeding the date such tender or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for shares of Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); OS1 = the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and SP1 = the average of the Last Reported Sale Prices of Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the date such tender or exchange offer expires. The adjustment to the Conversion Rate under this Section 4.05(e) shall occur at the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires; provided that (x) in respect of any conversion of Notes for which Physical Settlement is applicable, if the relevant Conversion Date occurs during the 10 Trading Days immediately following, and including, the Trading Day next succeeding the expiration date of any tender or exchange offer, references to “10” or “10th” in the preceding paragraph shall be deemed replaced with such lesser number of Trading Days as have elapsed between the expiration date of such tender or exchange offer and such Conversion Date in determining the Conversion Rate and (y) in respect of any conversion of Notes for which Cash Settlement or Combination Settlement is applicable, subject to the immedia

Appears in 1 contract

Sources: Indenture (Nuvasive Inc)

Conversion Rate Adjustments. (a) The applicable Conversion Rate shall be adjusted from time to time by the Issuer as follows, except that the Issuer will not make any adjustments to the Conversion Rate if Holders participate (as a result of holding Notes and at the same time as ADS holders participate) in any of the transactions described below as if such Holders held a number of ADSs equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holders without having to convert their Notes. A Holder will be deemed to have so participated if the transaction results in an issuance of securities or a distribution of other property that are held by the ADS depositary or the CPO trustee (to the extent required to be later distributed by the CPO trustee to the ADS depository for the benefit of such Holders of the Notes) at the time of conversion of such Notes into ADSs. (i) If the Issuer issues solely Ordinary Shares as a dividend or any other distribution (including by recapitalization of retained earnings) on all or substantially all Ordinary Shares, or if the Issuer effects a share split or share combination of its Ordinary Shares, the applicable Conversion Rate will be subject to adjustments from time to time, without duplication, upon the occurrence of any of the following events: (a) If the Company (i) issues solely shares of Common Stock as a dividend or distribution on its shares of Common Stock, (ii) subdivides Common Stock or (iii) combines Common Stock, the Conversion Rate will be calculated adjusted based on the following formula: CR = CR0 × OS OS0 where, CR0 = the applicable Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record Date~~ Business Day immediately following (x) the date fixed for the determination of holders of Ordinary Shares entitled to receive such dividend or ~~distribution,~~ distribution or ~~immediately prior to~~ (y) the ~~Open of Business~~ date on ~~the effective date of~~ which such ~~subdivision~~ split or combination ~~of Common Stock~~becomes effective, as applicable (such date specified in clause (x) or (y), the ~~case may be~~“Dividend Record Date”); CR = the applicable Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on the Business Day immediately following the Dividend 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~~Date; OS0 = the number of ~~shares of Common Stock~~ Ordinary Shares outstanding immediately prior to the ~~Close~~ open of ~~Business~~ business on the Dividend 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~~Date; and OS = the number of ~~shares of Common Stock~~ Ordinary Shares that would be have been outstanding immediately ~~after giving effect~~ prior to the open of business on the Dividend Record Date as adjusted to take into account such dividend, distribution, split or combination. If any dividend or ~~distribution~~distribution of the type described in this clause (i) is declared that results in an adjustment pursuant to this clause (i) but is not so paid or made, or ~~immediately after~~ the ~~effective date of such subdivision~~ outstanding Ordinary Shares are not split or ~~combination of Common Stock~~combined, as the case may be. Any adjustment made under this Section 10.4(a) will 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 such dividend, distribution, subdivision or combination described in this Section 10.4(a) is declared but not so paid or made, the Conversion Rate ~~will~~ shall be immediately readjusted, effective (in the case of a dividend or distribution) as of the earliest of the date (A) the ~~Company~~Issuer’s ~~board~~ shareholders’ meeting or Board of ~~directors~~ Directors determines not to pay such dividend or ~~distribution~~ distribution, (B) the non-payment of such dividend is publicly announced or (C) the dividend was to ~~effect such subdivision~~ have been paid, or (in the case of a stock split or combination) the date on which such split or combination was to have been effective, to the Conversion Rate that would then be in effect if such ~~dividend~~ dividend, distribution, share split or ~~distribution~~ share combination had not been declared or ~~such subdivision or combination had not been~~ announced. (bii) If ~~an Ex-Dividend Date occurs for a distribution~~ the Issuer distributes to all or substantially all holders of ~~Common Stock of~~ Ordinary Shares any rights, ~~options~~ options, warrants or ~~warrants~~ other securities entitling ~~such holders~~ them for a period of not more than ~~sixty (60)~~ 45 calendar days from the ~~announcement~~ record date for such distribution to subscribe for or purchase ~~shares of Common Stock~~ Ordinary Shares (or securities convertible into ~~Common Stock~~Ordinary Shares), at a price per ~~share~~ Ordinary Share (or conversion price per Ordinary Share) less than the average of the ~~Closing~~ Last Reported Sale Prices of the ~~Common Stock~~ Ordinary Shares for the ~~ten (10)~~ 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the ~~announcement~~ declaration date for such distribution, the applicable Conversion Rate will be ~~calculated~~ adjusted based on the following formula: CR = CR0 × (OS0 + X X) (OS0 + Y Y) where, CR0 = the applicable Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the Business Day immediately following the date fixed for the determination of shareholders entitled to receive such rights, options, warrants or other securities (such date, the “Rights Distribution Record ~~Date for such distribution~~Date”); CR = the applicable Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on the Business Day immediately following the Rights Distribution Record ~~Date for such distribution~~Date; OS0 = the number of ~~shares of Common Stock~~ Ordinary Shares outstanding immediately prior to the ~~Close~~ open of ~~Business~~ business on the Rights Distribution Record ~~Date for such distribution~~Date; X = the total number of ~~shares of Common Stock~~ Ordinary Shares issuable pursuant to such rights, ~~options~~ options, warrants or ~~warrants~~other securities; and Y = the number of ~~shares of Common Stock~~ Ordinary Shares equal to the aggregate price payable to exercise such rights, ~~options~~ options, warrants or ~~warrants~~ other securities divided by the average of the ~~Closing~~ Last Reported Sale Prices of ~~Common Stock~~ the Ordinary Shares over the ~~ten (10)~~ 10 consecutive Trading Day period ending ~~on, and including,~~ on the Trading Day immediately preceding the date of announcement ~~date for such distribution. Any adjustment made under this Section 10.4(b) will be made successively whenever any~~ of the distribution of such rights, ~~options~~ options, warrants or other securities. If such rights, options, warrants or other securities are ~~issued and~~ not so issued, the Conversion Rate will ~~become effective immediately after~~ remain the ~~Close of Business on the~~ Conversion Rate that would then be in effect if a Rights Distribution Record Date for such ~~distribution~~distribution had not been fixed. To In addition, to the extent that ~~shares of Common Stock~~ Ordinary Shares are not delivered after the expiration of such rights, ~~options~~ options, warrants or ~~warrants, including because the distributed rights, options or warrants were not exercised~~other securities, the Conversion Rate ~~will~~ shall be ~~decreased~~ readjusted to the Conversion Rate that would then be in effect had the ~~increase with respect to~~ adjustments made upon the ~~distribution~~ issuance of such rights, ~~options~~ options, warrants or ~~warrants~~ other securities been made on the basis of delivery of only the number of ~~shares of Common Stock~~ Ordinary Shares actually delivered. If such rights, options or warrants are not so distributed, the Conversion Rate will be decreased to the Conversion Rate that would then be in effect if the Ex-Dividend Date for such distribution had not occurred. For purposes of this ~~Section 10.4(b~~clause (ii), in determining whether any rights, ~~options~~ options, warrants or ~~warrants~~ other securities entitle the ~~Purchaser~~ holders to subscribe for or purchase ~~shares of Common Stock~~ Ordinary Shares at ~~a price that is~~ less than the average of the ~~Closing~~ Last Reported Sale Prices of ~~the Common Stock over~~ Ordinary Shares for each Trading Day in the applicable ~~ten (10)~~ 10 consecutive Trading Day ~~period~~Period, there ~~will~~ shall be taken into account any consideration the ~~Company~~ Issuer receives for such rights, ~~options~~ options, warrants or ~~warrants~~ other securities and any amount payable on exercise thereof, with the value of such consideration if other than cash to be determined ~~in good faith~~ by the ~~Company~~Issuer’s ~~board~~ Board of ~~directors~~Directors. (iiii) If ~~an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of~~ the Issuer distributes shares of ~~the Company’s capital stock~~its Capital Stock, evidences of ~~the Company’s indebtedness or~~ its Indebtedness, other assets or property ~~of the Company~~ or ~~rights, options~~ rights or warrants to acquire ~~the Company’s capital stock~~ its Capital Stock or other securities, ~~evidences of its indebtedness or other assets or property of the Company~~ to all or substantially all holders of ~~the Common Stock (excluding~~ Ordinary Shares, excluding (A) dividends or distributions and rights, ~~options or~~ options, warrants ~~as to which an adjustment was effected under Sections 10.4(a~~and other securities described in clause (i) or ~~10.4(b);~~ (ii) above or clause (v) below; (B) dividends or distributions paid exclusively in ~~cash covered under Section 10.4(d); and~~ cash, including as described in clause (iv) below; (C) dividends or distributions effected pursuant to a reclassification, merger, sale, conveyance or other transaction described in Section 12.06, where such dividend or distribution becomes Reference Property as described in Section 12.06; and (D) Spin-~~Offs),~~ Offs to which the provisions set forth below in this clause (iii) shall apply; then the applicable Conversion Rate will be ~~calculated~~ adjusted based on the following formula: CR = CR0 × ▇▇▇ (▇▇▇ ~~– FMV~~ - FMV) where, CR0 = the applicable Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record Date~~ Business Day immediately following the record date for such distribution; CR = the applicable Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record Date for~~ Business Day immediately following such ~~distribution~~record date; ~~SP0 =~~ SP0= the average of the ~~Closing~~ Last Reported Sale Prices of ~~the Common Stock~~ Ordinary Shares over the ~~ten (10)~~ 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 ~~Company~~Issuer’s ~~board~~ Board of ~~directors~~Directors or a committee thereof) of the shares of ~~capital stock~~Capital Stock, evidences of ~~indebtedness~~Indebtedness, ~~assets or property or rights~~assets, ~~options~~ property, rights or warrants distributed with respect to each outstanding ~~share of Common Stock~~ Ordinary Share as of the ~~Open~~ open of ~~Business~~ business on the Ex-Dividend Date for such distribution. Any adjustment made under the above portion of this Section 10.4(c) will 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 will be readjusted to be the Conversion Rate ; provided that ~~would then be in effect if such distribution had not been declared. Notwithstanding the foregoing,~~ if “FMV” (as ~~defined above)~~ set forth above is equal to or greater than “SP0” (as ~~defined~~ set forth above), in lieu of the foregoing ~~increase~~adjustment, adequate provision will be made so that each Holder shall receive on the ~~Purchaser will receive~~date on which the distributed property is distributed to holders of Ordinary Shares, ~~in respect of~~ for each ~~$1,000~~ U.S.$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 Bond~~Notes, the amount ~~and kind~~ of ~~the Relevant Distribution that~~ distributed property such ~~holder~~ Holder would have received if had such ~~holder~~ Holder owned a number of ~~shares of Common Stock equal~~ Ordinary Shares that it would have been entitled to receive based on the Conversion Rate on the ~~Record Date~~ record date for such distribution; provided further that if the ~~distribution. For purposes~~ Issuer’s Board of this Section 10.4(c)(i) (and subject in all respects to Section 10.4(f)): (1) Rights, options or warrants distributed by the Company to all or substantially all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s capital stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a Directors determines “Trigger Event”): (a) are deemed to be transferred with such shares of the Common Stock; (b) are not exercisable; and (c) are also issued in respect of future issuances of the Common Stock, will be deemed not to have been distributed FMV” for purposes of ~~this Section 10.4(c) (and no~~ the foregoing adjustment by reference to the ~~Conversion Rate under this Section 10.4(c) will be required) until~~ trading market for any securities, it must in doing so consider the ~~occurrence~~ prices in such market over the same period used in computing the average of the earliest Trigger Event, whereupon such rights, options or warrants will be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate will be made under this Section 10.4(c). (2) If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the Closing, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date Last Reported Sale Prices of the ~~occurrence of any and each such event will be deemed to be~~ Ordinary Shares over the ~~date of distribution and~~ 10 consecutive Trading Day period ending on the Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants will 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, options or warrants, or any Trigger Event or other event of the type described in the Trading Day immediately preceding ~~clause (2) with respect thereto that was counted~~ the Ex-Dividend Date for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 10.4(c) was made: (a) in the case of any such rights, options or warrants that will all have been redeemed or repurchased without exercise by any holders thereof, upon such final redemption or repurchase (x) the Conversion Rate will be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate will then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution pursuant to Section 10.4(d), equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase; and (b) in the case of such rights, options or warrants that have expired or been terminated without exercise by any holders thereof, the Conversion Rate will be readjusted as if such rights, options and warrants had not been issued. (4) For purposes of Sections 10.4(a), 10.4(b) and 10.4(c), if any dividend or distribution to which this Section 10.4(c) is applicable includes one or both of: (a) a dividend or distribution of shares of Common Stock to which Section 10.4(a) is applicable (the “Clause A Distribution”); or (b) an issuance of rights, options or warrants to which Section 10.4(b) is applicable (the “Clause B Distribution”), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2) the Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then be made, except that, if determined by the Company (A) the “Record Date” of the Clause A Distribution and the Clause B Distribution will be deemed to be the Record Date of the Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding immediately prior to the Close of Business on the Record Date or immediately prior to the Open of Business on such effective date” within the meaning of Section 10.4(a) or “outstanding immediately prior to the Close of Business on the Record Date” within the meaning of Section 10.4(b). (ii) . With respect to an adjustment pursuant to this ~~Section 10.4(c~~clause (iii) where there has been ~~an Ex-Dividend Date for~~ a payment of a dividend or other distribution on the ~~Common Stock of~~ Ordinary Shares or shares of ~~capital stock~~ Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business ~~unit, that are, or, when issued, will be, listed or admitted for trading on a United States national securities exchange~~ unit (a “Spin-Off”), the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: CR = CR0 × (FMV + ~~MP0~~ MP0) MP0 where, CR0 = the applicable Conversion Rate in effect immediately prior to the ~~Close~~ opening of ~~Business~~ business on the ~~Record Date~~ Business Day immediately following the record date for the Spin-Off; CR = the applicable Conversion Rate in effect immediately after the ~~Close~~ opening of ~~Business~~ business on the ~~Record Date for the Spin-Off~~Business Day immediately following such record date; FMV = the average of the ~~Closing~~ Last Reported Sale Prices of the ~~capital stock~~ Capital Stock or similar equity interest distributed to holders of ~~Common Stock~~ Ordinary Shares applicable to one ~~share of Common Stock (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest)~~ Ordinary Share over the first ~~ten (10)~~ 10 consecutive Trading Day period ~~commencing on~~immediately following, and including, the ~~effective date for~~ Ex-Dividend Date of the Spin-Off (~~such period,~~ the “Valuation Period”); and MP0 = the average of the ~~Closing~~ Last Reported Sale Prices of the ~~Common Stock~~ Ordinary Shares over the Valuation Period. The adjustment to the applicable Conversion Rate under the preceding paragraph of this ~~Section 10.4(c~~clause (iii) will be ~~determined~~ made immediately after the open of business on the day after the last day of the Valuation ~~Period~~ Period, but will be given effect ~~immediately after~~ as of the ~~Close~~ open of ~~Business~~ business on the ~~Record Date~~ Business Day immediately following the record date for the Spin-Off. In For purposes of determining the applicable Conversion Rate in respect of any conversion during the Valuation ~~Period for any Spin-Off~~Period, references within the portion of this ~~Section 10.4(c)(ii~~clause (iii) related to ~~ten (10)~~ Spin-Offs to 10 Trading Days ~~will~~ shall be deemed ~~to be~~ replaced with such lesser number of Trading Days as have elapsed from, and including, the ~~effective date for~~ Ex-Dividend Date of such Spin-Off to, but excluding, the ~~relevant~~ Conversion Date. . If any distribution or spin-off described in this clause (diii) If results in an Exadjustment to the Conversion Rate but such distribution or Spin-Dividend Date occurs for a cash dividend or distribution to all or substantially all holders of the Common Stock (other than any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up)Off is not so made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such distribution or Spin-Off had not been declared. (iv) If the Issuer makes or pays any cash dividend or any other cash distribution to all, or substantially all, holders of the outstanding Ordinary Shares, the applicable Conversion Rate will be ~~recalculated~~ adjusted based on the following formula: CR = CR0 × ▇▇▇ (▇▇▇ ~~– C~~ - C) where, CR0 = the applicable Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record Date~~ Business Day immediately following the record date for such dividend or distribution; CR = the applicable Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record Date for~~ Business Day immediately following such ~~distribution~~record date; SP0 = the average of the ~~Closing~~ Last Reported Sale Prices of the ~~Common Stock~~ Ordinary Shares over the ~~ten (10)~~ 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and C = the amount in cash per share ~~of Common Stock~~ the ~~Company pays, or distributes,~~ Issuer distributes to ~~all or substantially all~~ holders of the ~~Common Stock~~Ordinary Shares. ~~Any adjustment made under this Section 10.4(d) will become effective immediately after the Close of Business on the Record Date for~~ If such dividend or ~~distribution. No~~ distribution results in an adjustment ~~pursuant~~ to the ~~above formula will result in a decrease of~~ Conversion Rate under the ~~Conversion Rate. However, if any~~ preceding paragraph and such dividend or distribution ~~described in this Section 10.4(d)~~ is ~~declared but~~ not so paid or made, the Conversion Rate ~~will~~ shall again be ~~readjusted~~ adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. (v) If (A) the Issuer or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for the Ordinary Shares, and (B) the cash and value of any other consideration included in the payment per Ordinary Share exceeds the average of the Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Date”), the applicable Conversion Rate will be adjusted based on the following formula: CR = CR0 × AC + (SP x OS) (SP x OS0) where, CR0 = the applicable Conversion Rate in effect immediately prior to the open of business on the Business Day next succeeding the Expiration Date; CR = the applicable Conversion Rate in effect immediately after the open of business on the Business Day next succeeding the Expiration Date; AC = the aggregate value of all cash and any other consideration (as determined by the Issuer’s Board of Directors or a committee thereof) paid or payable for Ordinary Shares purchased in such tender or exchange offer; OS0 = the number of Ordinary Shares outstanding immediately prior to the time (the “Expiration Time”) such tender or exchange offer expires (prior to giving effect to such tender or exchange offer); OS = the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect to such tender or exchange offer); and SP = the average of the Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Expiration Date. The adjustment to the Conversion Rate under this clause (v) will be made at the close of business on the tenth Trading Day immediately following, and including, the Trading Day next succeeding the Expiration Date, but will be given effect as of the open of business on the Business Day following the Expiration Date. For purposes of determining the applicable Conversion Rate in respect of any conversion during the 10 Trading Days commencing on, and including, the Trading Day next succeeding the Expiration Date of any tender or exchange offer, references to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the Expiration Date to, but excluding the Conversion Date. If the Issuer or one of its Subsidiaries is obligated to purchase the Ordinary Shares pursuant to any such tender or exchange offer but the Issuer or the relevant Subsidiary is permanently prevented by applicable law from effecting any such purchase or all or any portion of such purchases are rescinded, the new Conversion Rate shall be readjusted to be the Conversion Rate that would be in effect if such tender or exchange offer had not been made or had only been made in respect of the purchases that had been effected. (vi) Notwithstanding the foregoing, if ~~“C”~~ any calculation required to be made in determining the adjustment to the Conversion Rate under this Section 12.05(a) cannot be made at such time because the facts required for such determination cannot be ascertained, the Issuer will make such determination as soon as practicable upon such information becoming determinate, and such adjustment will be made with retroactive effect to the first such date where the adjustment is required to be made. (~~as defined~~ vii) To the extent that any event would give rise to an adjustment to be made under more than one of the clauses set forth above~~) is equal~~ , or holders of the Issuer’s Ordinary Shares have the right to ~~or greater~~ elect between distributions that would be covered by more than ~~“SP0” (as defined above)~~one of such clauses, the Issuer shall, in ~~lieu of~~ good faith, determine the ~~foregoing increase~~adjustment to be made, including, if applicable, the ~~Purchaser will receive, for each $1,000 principal amount~~ order of ~~the Bond, at the sam~~the

Appears in 1 contract

Sources: Indenture (Cemex Sab De Cv)

Conversion Rate Adjustments. The Conversion Rate ~~will~~ shall be ~~subject to adjustments~~ adjusted from time to ~~time~~time by the Company as follows, except that the Company shall not make any adjustment to the Conversion Rate if Holders may participate, as a result of holding the Securities, in the transaction described below without ~~duplication, upon the occurrence of any of the following events:~~having to convert their Securities. (a) If the ~~Company (i) issues solely shares~~ Company, at any time or from time to time while any of ~~Common Stock as~~ the Securities are outstanding, pays a dividend or makes a distribution on in Common Shares to all holders of its ~~shares of~~ outstanding Common ~~Stock~~Shares, ~~(ii)~~ or if the Company subdivides or combines its Common ~~Stock or (iii) combines Common Stock~~Shares, then the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: ~~CR = CR0 × OS OS0~~ where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ Ex-Dividend Date of such dividend or distribution or the effective date of such subdivision or combination, as applicable CR' = the Conversion Rate in effect immediately after such Ex-Dividend Date or effective date, as applicable OS0 = the number of Common Shares outstanding immediately prior to such 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 dividend, distribution, subdivision or combination Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the Business on Day following the Record Date for such dividend or distribution, or ~~immediately prior to~~ the ~~Open of Business on the effective~~ date of fixed for determination for such Common Share 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~~ combination. If any dividend or ~~distribution, or immediately after~~ distribution of 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 10.4(a) will 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 such dividend, distribution, subdivision or combination type described in this Section ~~10.4(a~~13.04(a) is declared but not so paid or made, the Conversion Rate ~~will~~ shall again be ~~immediately readjusted, effective as of the date the Company’s board of directors determines not to pay such dividend or distribution or to effect such subdivision or combination,~~ adjusted to the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been ~~declared or such subdivision or combination had not been announced~~declared. (b) If ~~an Ex-Dividend Date occurs for a distribution~~ the Company, at any time or from time to time while any of the Securities are outstanding, distributes to holders of all or substantially all ~~holders~~ of its outstanding Common ~~Stock of any rights, options~~ Shares certain rights or warrants ~~entitling such holders for a period of not more than sixty (60) calendar days from the announcement date for such distribution~~ to ~~subscribe for or~~ purchase ~~shares of~~ Common ~~Stock (or securities convertible into Common Stock),~~ Shares at a price per ~~share~~ Common Share less than the ~~average of the~~ Closing Sale ~~Prices~~ Price of the Common ~~Stock~~ Shares on the Record Date for ~~the ten (10) consecutive Trading Day period ending on~~shareholders entitled to receive such rights and warrants, ~~and including, the Trading Day immediately preceding the announcement date~~ which rights or warrants are exercisable for ~~such distribution~~not more than 60 days, the Conversion Rate ~~will~~ shall be ~~calculated~~ adjusted based on the following ~~formula: CR = CR0 × OS0 + X OS0 + Y~~ 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 ~~Close~~ Ex-Dividend Date of ~~Business on the Record Date for~~ such ~~distribution; CR~~ distribution CR' = the Conversion Rate in effect immediately after ~~the Close of Business on the Record~~ such Ex-Dividend Date ~~for such distribution;~~ OS0 = the number of ~~shares~~ Common Shares outstanding at the open of ~~Common Stock outstanding immediately prior to the Close of Business~~ business on the ~~Record~~ next Business Day following such Ex-Dividend Date ~~for such distribution;~~ X = the total number of ~~shares of~~ Common ~~Stock~~ Shares issuable pursuant to such ~~rights, options~~ rights or ~~warrants; and~~ warrants Y = the number of ~~shares of~~ Common ~~Stock~~ Shares equal to the quotient of (a) the aggregate price payable to exercise all such ~~rights, options~~ rights or warrants ~~divided by~~ and (b) the average of the Closing Sale ~~Prices~~ Price of the Common ~~Stock over~~ Shares for the ~~ten (10)~~ 10 consecutive Trading ~~Day period~~ Days ending ~~on, and including,~~ on the Trading Day immediately preceding the date of announcement ~~date~~ for the issuance of such ~~distribution. Any adjustment made under this Section 10.4(b) will be made successively whenever any such rights, options~~ rights or warrants ~~are issued and will~~ Such adjustment shall become effective immediately after ~~the Close of Business~~ 9:00 a.m., New York City time, on the ~~Record Date for~~ Business Day following the date of announcement of the issuance of such ~~distribution~~rights or warrants. To the extent that ~~shares of~~ Common ~~Stock~~ Shares are not delivered ~~after the expiration of~~ pursuant to such ~~rights, options~~ rights or warrants, ~~including because~~ upon the ~~distributed rights, options~~ expiration or ~~warrants were not exercised~~termination of such rights or warrants, the Conversion Rate ~~will~~ shall be ~~decreased~~ readjusted to the Conversion Rate ~~that~~ which would then be in effect had the ~~increase with respect to~~ adjustments made upon the ~~distribution~~ issuance of such ~~rights, options~~ rights or warrants been made on the basis of the delivery of only the number of ~~shares of~~ Common ~~Stock~~ Shares actually delivered. If In the event that such ~~rights, options~~ rights or warrants are not so ~~distributed~~issued, the Conversion Rate ~~will~~ shall again be ~~decreased~~ adjusted to be the Conversion Rate ~~that~~ which would then be in effect if the ~~Ex-Dividend Date~~ date fixed for the determination of shareholders entitled to receive such ~~distribution~~ rights or warrants had not ~~occurred~~been fixed. ~~For purposes of this Section 10.4(b), in~~ In determining whether any ~~rights, options~~ rights or warrants entitle the ~~Purchaser~~ holders to subscribe for or purchase ~~shares of~~ Common ~~Stock~~ Shares at ~~a price that is~~ less than ~~the average of the~~ such Closing Sale ~~Prices~~ Price, and in determining the aggregate offering price of ~~the~~ such Common ~~Stock over the applicable ten (10) consecutive Trading Day period~~Shares, there ~~will~~ shall be taken into account any consideration ~~the Company receives~~ received for such ~~rights, options~~ rights or warrants 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 ~~Company’s board~~ Board of ~~directors. (i) If an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of shares~~ Directors 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, evidences of its indebtedness or other assets or property of the Company to all or substantially all holders of the Common Stock (excluding (A) dividends or distributions and rights, options or warrants as to which an adjustment was effected under Sections 10.4(a) or 10.4(b); (B) dividends or distributions paid exclusively in cash covered under Section 10.4(d); and (C) Spin-Offs), then the Conversion Rate will be calculated based on the following formula: CR = CR0 × ▇▇▇ ▇▇▇ – 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 ten (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 Company’s 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 adjustment made under the above portion of this Section 10.4(c) will 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 will 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, the Purchaser will 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 Bond, 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 ~~10.4(c)(i) (and subject in all respects to Section 10.4(f~~13.04(c)~~): (1) Rights~~, ~~options~~ rights or warrants distributed by the Company to all ~~or substantially all~~ holders of the Common ~~Stock~~ Shares entitling them to subscribe for or purchase shares of the Company~~’s capital stock, including Common~~ 's Capital Stock (either initially or under certain circumstances), which ~~rights, options~~ rights or warrants, until the occurrence of a specified event or events (~~a “~~"Trigger Event~~”):~~ "): (ai) are deemed to be transferred with such ~~shares of the~~ Common ~~Stock;~~ Shares; (bii) are not exercisable; ~~and~~ and (ciii) are also issued in respect of future issuances of ~~the~~ Common ~~Stock~~Shares, ~~will~~ shall be deemed not to have been distributed for purposes of this Section ~~10.4(c~~13.04(c) (and no adjustment to the Conversion ~~Rate~~ Price under this Section ~~10.4(c~~13.04(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such ~~rights, options or~~ rights and warrants ~~will~~ shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate ~~will~~ shall be made under this Section ~~10.4(c~~13.04(c)~~. (2)~~ . If any such ~~right, option~~ right or warrant, including any such existing ~~rights, options~~ rights or warrants distributed prior to the ~~Closing~~date of this Indenture, are subject to events, upon the occurrence of which such ~~rights, options~~ 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 ~~will~~ shall be deemed to be the date of distribution and ~~the Record Date~~ record date with respect to new ~~rights, options~~ rights or warrants with such rights (~~in which case~~ and a termination or expiration of the existing ~~rights, options~~ rights or warrants ~~will 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, options~~ rights or warrants, or any Trigger Event or other event (of the type described in the ~~immediately~~ preceding ~~clause (2~~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 ~~10.4(c~~13.04(c) was made: , (aA) in the case of any such ~~rights, options~~ rights or warrants ~~that will~~ which shall all have been redeemed or ~~repurchased~~ purchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase ~~(x) the Conversion Rate will be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate will then again be readjusted~~ to give effect to such ~~distribution, deemed~~ distribution or Trigger Event, as the case may be, as though it were a cash ~~distribution pursuant to Section 10.4(d)~~distribution, equal to the per share redemption or ~~repurchase~~ purchase price received by a holder ~~or holders~~ of Common ~~Stock~~ Shares with respect to such ~~rights, options~~ rights or warrants (assuming such holder had retained such ~~rights, options~~ rights or warrants), made to all applicable holders of Common ~~Stock~~ Shares as of the date of such redemption or repurchase~~; and~~ , and (bB) in the case of such ~~rights, options~~ rights or warrants ~~that~~ which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate ~~will~~ shall be readjusted as if such ~~rights, options~~ rights and warrants had not been issued. (4c) ~~For purposes~~ If the Company, at any time or from time to time while the Securities are outstanding, distributes to holders of ~~Sections 10.4(a)~~all or substantially of the Common Shares, ~~10.4(b) and 10.4(c)~~Common Shares, ~~if any dividend~~ evidences of indebtedness or ~~distribution to which this Section 10.4(c) is applicable includes one~~ assets or ~~both of~~property, including securities, but excluding: (ai) ~~a dividend~~ dividends or ~~distribution of shares of Common Stock~~ distributions referred to ~~which~~ in Section ~~10.4(a) is applicable (the “Clause A Distribution”~~13.04(a)~~; or~~; (bii) ~~an issuance of rights, options~~ rights or warrants referred to ~~which~~ in Section ~~10.4(b) is applicable (the “Clause B Distribution”~~13.04(c), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2iii) dividends or distributions paid exclusively in cash; then the ~~Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any~~ Conversion Rate ~~adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then~~ shall be ~~made~~adjusted based on the following formula: where, ~~except that, if determined by~~ CR0 = the Company (A) the “Record Date” of the Clause A Distribution and the Clause B Distribution will be deemed to be the Record Date of the Clause C Distribution and (B) any shares of Common Stock included Conversion Rate in ~~the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding~~ effect immediately prior to the ~~Close~~ Ex-Dividend Date for such distribution CR' = the Conversion Rate in effect immediately after such Ex-Dividend Date SP0 = the Current Market Price of ~~Business~~ the Common Shares on the Trading Day immediately preceding such Ex-Dividend Date 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 or for such distribution Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the ~~Open~~ Business Day following the Record Date for such distribution. If the Board of ~~Business on such effective date” within~~ Directors of the ~~meaning~~ Company determines the fair market value of any distribution for purposes of this Section ~~10.4(a~~13.04(c) ~~or “outstanding immediately prior~~ by reference to the ~~Close~~ 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 ~~Business~~ 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 the rights under the rights plan attached to the Common Shares unless 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 assets 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 ~~Record Date” within~~ Securities will be received by the ~~meaning~~ Holder by reason of ~~Section 10.4(b). (ii)~~ 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 ~~10.4(c~~13.04(c) where there has been ~~an Ex-Dividend Date for~~ a payment of a dividend or other distribution on the Common ~~Stock of~~ Shares or common shares ~~of capital stock~~ of any class or series, or similar equity interest, of or relating to a Subsidiary or other business ~~unit, that are, or, when issued, will be, listed or admitted for trading on a United States national securities exchange~~ unit (a “"Spin-Off”"), the Conversion Rate in effect immediately before 5:00 p.m., New York City time, on the effective date of the Spin-Off shall be increased based on the following formula in lieu of the formula above: where, CR0 = the Conversion Rate in effect immediately prior to 5:00 p.m., New York City time, on the effective date of the Spin-Off CR' = the Conversion Rate in effect immediately after 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 over the 10 consecutive Trading-Day period commencing on, and including, the effective date of the Spin-Off MP0 = the average of the Closing Sale Prices of the Common Shares over the 10 consecutive Trading-Day period commencing on, and including, the effective date of the Spin-Off The adjustment to the Conversion Rate under the preceding paragraph will occur on the 10th Trading Day from, and including, the effective date of the Spin-Off and shall be ~~calculated~~ 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. (d) If any cash dividend or other distribution is paid to all or substantially all holders of Common Shares, the Conversion Rate shall be adjusted 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 Record~~ Ex-Dividend Date for ~~the Spin-Off; CR~~ such dividend or distribution CR' = the Conversion Rate in effect immediately after such Ex-Dividend Date SP0 = the ~~Close~~ Current Market Price of ~~Business~~ the Common Shares on the ~~Record~~ Trading Day immediately preceding such Ex-Dividend Date ~~for the Spin-Off; FMV~~ C = the ~~average of~~ amount in cash per share the ~~Closing Sale Prices of the capital stock or similar equity interest distributed~~ Company distributes to holders of Common ~~Stock~~ Shares (e) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer (as such terms are defined under applicable ~~to one share of~~ U.S. securities laws) for the Common ~~Stock (determined by reference~~ Shares, to the ~~definition~~ extent that the cash and value of ~~“Closing Sale Price” as if references therein to~~ any other consideration included in the payment per Common Stock were to such capital stock or similar equity interest) over the first ten (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 Share exceeds the Closing Sale ~~Prices~~ Price of the Common ~~Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph of this Section 10.4(c) will be determined~~ Shares on the Trading Day next succeeding the last ~~day of the Valuation Period but will~~ date on which tenders or exchanges may 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 10.4(c)(ii) related made pursuant to ~~ten (10) Trading Days will 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 tender or ~~distribution to all or substantially all holders of the Common Stock (other than any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up)~~exchange offer, the Conversion Rate ~~will~~ shall be ~~recalculated~~ increased based on the following formula: ~~CR = CR0 × ▇▇▇ ▇▇▇ – C~~ where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ effective date of ~~Business on~~ the ~~Record Date for such distribution; CR~~ adjustment CR' = the Conversion Rate in effect immediately after the ~~Close~~ effective date of ~~Business~~ the adjustment AC = the fair market value (as determined by the Board of Directors) of the aggregate consideration paid or payable for shares accepted for purchase or exchange in such tender or exchange offer OS0 = the number of Common Shares outstanding on the ~~Record Date for~~ Trading Day immediately preceding the date such ~~distribution; SP0~~ tender or exchange offer expires (prior to giving effect to such tender or exchange offer) OS' = the ~~average~~ number of Common Shares outstanding less any Common Shares accepted for purchase or exchange in the ~~Closing Sale Prices~~ tender or exchange offer at the time such tender or exchange offer expires SP' = the Current Market Price of the Common ~~Stock over~~ Shares on the ~~ten (10) consecutive~~ Trading Day ~~period ending on~~next succeeding the date such tender or exchange offer expires 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 ~~immediately preceding~~ next succeeding the ~~Ex-Dividend Date for~~ date such ~~distribution~~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; ~~and C = the amount~~ provided that in ~~cash per share~~ respect of Common Stock the Company pays, or distributes, to all or substantially all holders of the Common Stock. Any adjustment made under this Section 10.4(d) will become effective immediately after the Close of Business on the Record Date for such dividend or distribution. No adjustment pursuant any conversion occurring prior to the ~~above formula will result~~ 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 ~~a decrease of~~ determining the applicable Conversion Rate. ~~However~~If the Company is obligated to repurchase shares pursuant to any such tender or exchange offer, if but the Company is permanently prevented by applicable law from effecting any ~~dividend~~ such purchases or ~~distribution described in this Section 10.4(d) is declared but not so paid or made~~all such purchases are rescinded, the Conversion Rate ~~will~~ shall again be ~~readjusted~~ adjusted to be the Conversion Rate that would then be in effect if such ~~dividend~~ tender or ~~distribution~~ exchange had not been ~~declared. Notwithstanding the foregoing, if “C”~~ made. (~~as defined above~~f) ~~is equal to or greater than “SP0” (as defined above), in lieu~~ For purposes of ~~the foregoing increase~~this Section 13.04, the ~~Purchaser will receive, for each $1,000 principal amount of~~ following terms shall have the ~~Bond, at the sam~~meaning indicated:

Appears in 1 contract

Sources: Indenture (Jaguar Mining Inc)

Conversion Rate Adjustments. The Conversion Rate ~~will~~ shall be subject to ~~adjustments~~ adjustment from time to ~~time~~time only as set forth below; provided, ~~without duplication~~however, ~~upon~~ that the ~~occurrence~~ Company shall not make any adjustments to the Conversion Rate if Holders participate (as a result of holding the Notes, and at the same time as the holders of Common Stock participate) in any of the ~~following events:~~transactions described in this Section 12.05 as if such Holders held a number of shares of Common Stock equal to the Conversion Rate immediately prior to the event that otherwise would result in a Conversion Rate adjustment, multiplied by the principal amount (expressed in thousands) of Notes held by such Holder, without having to convert their Notes. (a) If the Company ~~(i)~~ issues ~~solely~~ shares of Common Stock as a dividend or distribution on ~~its~~ shares of Common Stock, ~~(ii) subdivides Common Stock~~ or ~~(iii) combines Common Stock~~if the Company effects a share split or share combination, the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: CR CR’ = CR0 ~~× OS~~ x OS’ OS0 where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such dividend or distribution, or immediately prior to the ~~Open~~ open of ~~Business~~ business on the effective date of such ~~subdivision~~ share split or ~~combination of Common Stock~~share combination, as the case may be; CR CR’ = the new Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such dividend or distribution, or immediately after the ~~Open~~ open of ~~Business~~ business on the effective date of such ~~subdivision~~ share split or ~~combination of Common Stock~~share combination, as the case may be; OS0 = the number of shares of Common Stock outstanding immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such dividend or distribution, or immediately prior to the ~~Open~~ open of ~~Business~~ business on the effective date of such ~~subdivision~~ share split or ~~combination of Common Stock~~share combination, as the case may be; and OS OS’ = the number of shares of Common Stock ~~that would be~~ outstanding immediately after giving effect to such ~~dividend or~~ dividend, distribution, share split or ~~immediately after the effective date of such subdivision or combination of Common Stock, as the case may be~~share combination. Any adjustment made ~~under~~ pursuant to this Section ~~10.4(a~~12.05(a) ~~will~~ shall become effective immediately after (x) the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such dividend or ~~distribution,~~ distribution or ~~immediately after~~ (y) the ~~Open~~ open of ~~Business~~ business on the ~~effective~~ date of on which such ~~subdivision~~ split or combination ~~of Common Stock~~becomes effective, as ~~the case may be~~applicable. If ~~such dividend, distribution, subdivision~~ any dividend or ~~combination~~ distribution described in this Section ~~10.4(a~~12.05(a) is declared but not so paid or made, the new Conversion Rate ~~will~~ shall be immediately readjusted, effective as of the date the ~~Company’s board~~ Board of ~~directors~~ Directors determines not to pay such dividend or distribution ~~or to effect such subdivision or combination,~~ to the Conversion Rate that would then be in effect if such dividend or distribution had not been ~~declared or such subdivision or combination had not been announced~~declared. (b) If ~~an Ex-Dividend Date occurs for a distribution~~ the Company distributes to all or substantially all holders of Common Stock of any ~~rights, options~~ rights or warrants entitling ~~such holders~~ them to purchase, for a period of not more than ~~sixty (60) calendar~~ 45 days ~~from~~ after the ~~announcement~~ declaration date for ~~such distribution to subscribe for or purchase~~ the distribution, shares of Common Stock ~~(or securities convertible into Common Stock),~~ at a price per share less than the average of the ~~Closing~~ Last Reported Sale Prices of the Common Stock for the ten ~~(10)~~ consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the ~~announcement~~ declaration date for such distribution, the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: CR CR’ = CR0 × x OS0 + X OS0 + Y where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such distribution; CR CR’ = the new Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such distribution; OS0 = the number of shares of the Common Stock outstanding immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such distribution; X = the total number of shares of Common Stock issuable pursuant to such ~~rights, options~~ rights or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such ~~rights, options~~ rights or warrants divided by the average of the ~~Closing~~ Last Reported Sale Prices of the Common Stock over the ten ~~(10)~~ consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the ~~announcement~~ declaration date for such distribution. For the purposes of this Section 12.05(b) in determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than the average of the Last Reported Sale Prices of the Common Stock, and in determining the aggregate exercise price payable for such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable upon exercise thereof, with the value of such consideration, if other than cash, as shall be determined in good faith by the Board of Directors. Any ~~adjustment~~ increase made under this Section ~~10.4(b~~12.05(b) will be made successively whenever any such rights, options or warrants are ~~issued~~ distributed and ~~will~~ shall become effective immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such distribution. ~~To the extent that shares of Common Stock are~~ If any right or warrant described in this Section 12.05(b) is not ~~delivered after~~ exercised or converted prior to the expiration of ~~such rights, options~~ the exercisability or ~~warrants, including because the distributed rights, options or warrants were not exercised~~convertibility thereof, the new Conversion Rate ~~will~~ shall be decreased to the Conversion Rate that would then be in effect had the increase with respect to the ~~distribution~~ issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such ~~rights, options~~ rights or warrants are not so distributed, the Conversion Rate ~~will~~ shall be ~~decreased~~ decreased, effective as of the date the Board of Directors determines not to distribute such rights or warrants, to the Conversion Rate that would then be in effect if the ~~Ex-Dividend Date for such~~ distribution had not occurred. For purposes of this Section 10.4(b), in determining whether any rights, options or warrants entitle the Purchaser to subscribe for or purchase shares of Common Stock at a price that is less than the average of the Closing Sale Prices of the Common Stock over the applicable ten (10) consecutive Trading Day period, there will be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise thereof, with the value of such consideration if other than cash to be determined in good faith by the Company’s board of directorsbeen declared. (ic) If ~~an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of~~ the Company distributes shares of ~~the Company’s capital stock~~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~~ Capital Stock or other securities, ~~evidences of its indebtedness or other assets or property of the Company~~ to all or substantially all holders of ~~the~~ Common ~~Stock~~ Stock, excluding: (~~excluding (A~~i) ~~dividends or distributions and rights~~dividends, ~~options~~ distributions, rights or warrants as to which an adjustment was effected ~~under Sections 10.4(a~~pursuant to Section 12.05(a) or ~~10.4(b);~~ Section 12.05(b) of this Supplemental Indenture; (Bii) dividends or distributions paid exclusively in cash ~~covered under~~ as to which an adjustment was effected pursuant to Section ~~10.4(d)~~12.05(d) of this Supplemental Indenture; ~~and~~ and (Ciii) ~~Spin~~spin-~~Offs)~~offs to which the provisions set forth below in this Section 12.05(c) shall apply, then the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: CR CR’ = CR0 × x ▇▇▇ ▇▇▇ – FMV where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such distribution; CR CR’ = the new Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such distribution; SP0 = the average of the ~~Closing~~ Last Reported Sale Prices of the Common Stock over the ten ~~(10)~~ consecutive Trading Day period ending ~~on,~~ on and ~~including,~~ 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 ~~Company’s board~~ Board of ~~directors~~Directors) of ~~the~~ shares of ~~capital stock~~Capital Stock, ~~evidences~~ evidence of indebtedness, ~~assets~~ assets, property, rights or ~~property or rights~~warrants, ~~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 adjustment made under~~ If the ~~above portion~~ Board of Directors determines the “FMV” (as defined above) of any distribution for purposes of this Section ~~10.4(c~~12.05(c) ~~will~~ by reference to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Common Stock over the ten consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution. An adjustment to the Conversion Rate made pursuant this Section 12.05(c) shall become effective immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for ~~such~~ the applicable distribution. No With respect to an adjustment pursuant to this Section 12.05(c) where there has been a payment of a dividend or other distribution on 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 that are, or when issued, will be, traded on a U.S. national securities exchange (each, a “spin-off”), the ~~above formula will result~~ Conversion Rate in ~~a decrease~~ effect immediately before 5:00 p.m., New York City time, on the tenth Trading Day immediately following, and including, the effective date of the spin-off will be increased based on the following formula: CR’ = CR0 x FMV0 + MP0 MP0 where, CR0 = the Conversion ~~Rate~~Rate in effect immediately prior to the tenth Trading Day immediately following, and including, the effective date of the spin-off; CR’ = the new Conversion Rate in effect immediately after the tenth Trading Day immediately following, and including, the effective date of the spin-off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of Common Stock over the first ten consecutive Trading Day period immediately following, and including, the effective date of the spin-off; and MP0 = the average of the Last Reported Sale Prices of the Common Stock over the first ten consecutive Trading Day period immediately following, and including, the effective date of the spin-off. ~~However~~The adjustment to the Conversion Rate described in this Section 12.05(c) shall occur immediately after the tenth Trading Day immediately following, if and including, the effective date of the spin-off; provided that, for purposes of determining the Conversion Rate in respect of any conversion during the ten Trading Days following the effective date of any spin-off, references within the portion of this Section 12.05(c) related to “spin-offs” to ten trading days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such spin-off and the relevant Conversion Date. If any dividend or distribution described in this Section 12.05(c) is declared but not so paid or made, the new Conversion Rate ~~will~~ shall be readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, the Purchaser will 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 Bond, 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 purposes of this Section ~~10.4(c)(i~~12.05(c) (and subject in all ~~respects~~ respect to Section ~~10.4(f~~12.11 of this Supplemental Indenture)~~): (1) Rights~~, rights, options or warrants distributed by the Company to all ~~or substantially all~~ holders of ~~the~~ its Common Stock entitling them to subscribe for or purchase shares of the Company’s ~~capital stock~~Capital Stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”): ): (ai) are deemed to be transferred with such shares of the Common Stock; ; (bii) are not exercisable; ~~and~~ and (ciii) are also issued in respect of future issuances of the Common Stock, ~~will~~ shall be deemed not to have been distributed for purposes of this Section ~~10.4(c~~12.05(c) (and no adjustment to the Conversion Rate under this Section ~~10.4(c~~12.05(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants ~~will~~ shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate ~~will~~ shall be made under this Section ~~10.4(c~~12.05(c)~~. (2)~~ . If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the ~~Closing~~date of this Supplemental Indenture, are subject to events, upon the occurrence of which such 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 ~~will~~ shall be deemed to be the date of distribution and ~~the~~ Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants ~~will~~ 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, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding ~~clause (2~~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 ~~10.4(c~~12.05(c) was made: , (a1) in the case of any such rights, options or warrants that ~~will~~ shall all have been redeemed or ~~repurchased~~ purchased without exercise by any holders thereof, upon such final redemption or ~~repurchase~~ purchase (x) the Conversion Rate ~~will~~ shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate ~~will~~ shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash ~~distribution pursuant to Section 10.4(d)~~distribution, equal to the per share redemption or ~~repurchase~~ purchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or ~~repurchase; and~~ purchase, and (b2) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate ~~will~~ shall be readjusted as if such rights, options and warrants had not been issued. (4) For purposes of Sections 10.4(a), 10.4(b) and 10.4(c), if any dividend or distribution to which this Section 10.4(c) is applicable includes one or both of: (a) a dividend or distribution of shares of Common Stock to which Section 10.4(a) is applicable (the “Clause A Distribution”); or (b) an issuance of rights, options or warrants to which Section 10.4(b) is applicable (the “Clause B Distribution”), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2) the Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then be made, except that, if determined by the Company (A) the “Record Date” of the Clause A Distribution and the Clause B Distribution will be deemed to be the Record Date of the Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding immediately prior to the Close of Business on the Record Date or immediately prior to the Open of Business on such effective date” within the meaning of Section 10.4(a) or “outstanding immediately prior to the Close of Business on the Record Date” within the meaning of Section 10.4(b). (ii) With respect to an adjustment pursuant to this Section 10.4(c) where there has been an Ex-Dividend Date for a dividend or other distribution on the Common Stock of shares of capital stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit, that are, or, when issued, will be, listed or admitted for trading on a United States national securities exchange (a “Spin-Off”), the Conversion Rate will be calculated 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 Record Date for the Spin-Off; CR = the Conversion Rate in effect immediately after the Close of Business on the Record Date for the Spin-Off; FMV = the 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 (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first ten (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 Closing Sale Prices of the Common Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph of this Section 10.4(c) will 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 10.4(c)(ii) related to ten (10) Trading Days will 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~~ any cash dividend or distribution is made to all or substantially all holders of the Common ~~Stock (other than any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up)~~Stock, the Conversion Rate will be ~~recalculated~~ adjusted based on the following formula: CR CR’ = CR0 × x ▇▇▇ ▇▇▇ – C where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such dividend or distribution; CR CR’ = the new Conversion Rate in effect immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for such dividend or distribution; SP0 = the ~~average of the Closing~~ Last Reported Sale ~~Prices~~ Price of the Common Stock ~~over the ten (10) consecutive Trading Day period ending on, and including,~~ on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and C = the amount in cash per share ~~of Common Stock~~ the Company ~~pays, or distributes,~~ distributes to ~~all or substantially all~~ holders of ~~the~~ Common Stock. ~~Any~~ Such an adjustment to the Conversion Rate made ~~under~~ pursuant to this Section ~~10.4(d~~12.05(d) ~~will~~ shall become effective immediately after the ~~Close~~ open of ~~Business~~ business on the ~~Record~~ Ex-Dividend Date for ~~such~~ the applicable dividend or distribution. ~~No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if~~ If any dividend or distribution described in this Section ~~10.4(d~~12.05(d) is declared but not so paid or made, the new Conversion Rate ~~will~~ shall be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared~~. Notwithstanding~~ . (e) If the ~~foregoing~~Company or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for Common Stock, ~~if “C”~~ to the extent that the cash and value of any other consideration included in the payment per share of the Common Stock exceeds the Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be increased based on the following formula: CR’ = CR0 x AC + (SP’ x OS’) OS0 x SP’ where, CR0 = the Conversion Rate in effect at the close of business on the last Trading Day of the ten consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires; CR’ = the new Conversion Rate in effect immediately following the last Trading Day of the ten consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as ~~defined above~~determined in good faith by the Board of Directors) ~~is equal~~ paid or payable for shares of Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the expiration of such tender or ~~greater than “SP0”~~ exchange offer (~~as defined above~~prior to giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer)~~, in lieu~~ ; OS’ = the number of shares of Common Stock outstanding immediately after the expiration of such tender or exchange offer (after giving effect to the purchase or exchange of shares of Common Stock pursuant to such tender or exchange offer); and SP’ = the average of the ~~foregoing increase, the Purchaser will receive, for each $1,000 principal amount~~ Last Reported Sale Prices of the ~~Bond, at~~ Common Stock over the ~~sam~~ten consecutive Trading Day period commencing on the Trading Day next succeeding the date such tender or exc

Appears in 1 contract

Sources: Supplemental Indenture (M I Homes Inc)

Conversion Rate Adjustments. The Conversion Rate ~~will~~ shall be ~~subject to adjustments~~ adjusted from time to ~~time~~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 ~~duplication, upon the occurrence of any of the following events:~~having to convert their Securities. (a) If the ~~Company (i) issues solely shares~~ Company, at any time or from time to time while any of ~~Common Stock as~~ the Securities are outstanding, pays a dividend or make a distribution on in Common Shares to all holders of its ~~shares of~~ outstanding Common ~~Stock~~Shares, ~~(ii)~~ or if the Company subdivides or combines its Common ~~Stock or (iii) combines Common Stock,~~ Shares then the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: ~~CR = CR0 × OS OS0~~ where, CR0 = the Conversion Rate in effect immediately prior to such event CR’ = the ~~Close~~ Conversion Rate in effect immediately after such event OS0 = the number of ~~Business~~ 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 ~~immediately prior to~~ the ~~Open of Business on the effective~~ date ~~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~~ fixed for determination for such share split or share combination. If any dividend or ~~distribution, or immediately after~~ distribution of 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 10.4(a) will 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 such dividend, distribution, subdivision or combination type described in this Section ~~10.4(a~~13.4(a) is declared but not so paid or made, the Conversion Rate ~~will~~ shall again be ~~immediately readjusted, effective as of the date the Company’s board of directors determines not to pay such dividend or distribution or to effect such subdivision or combination,~~ adjusted to the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been ~~declared or such subdivision or combination had not been announced~~declared. (b) If ~~an Ex-Dividend Date occurs for a distribution~~ 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 ~~Stock of any rights, options~~ Shares certain rights or warrants ~~entitling such holders for a period of not more than sixty (60) calendar days from the announcement date for such distribution~~ to ~~subscribe for or~~ purchase ~~shares of~~ Common ~~Stock~~ Shares (or securities convertible into or exchangeable or exercisable for Common ~~Stock),~~ Shares) at a price per share (or having a conversion, exchange or exercise price per share) less than the ~~average of the~~ Closing Sale ~~Prices~~ Price of Common Shares on the ~~Common Stock~~ Record Date for ~~the ten (10) consecutive Trading Day period ending on~~shareholders entitled to receive such rights and warrants, ~~and including, the Trading Day immediately preceding the announcement date~~ which rights or warrants are exercisable for ~~such distribution~~not more than 60 days, the Conversion Rate ~~will~~ shall be ~~calculated~~ adjusted based on the following ~~formula: CR = CR0 × OS0 + X OS0 + Y~~ 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 Close of Business on the Record Date for~~ such ~~distribution; CR~~ event CR’ = the Conversion Rate in effect immediately after ~~the Close of Business on the Record Date for~~ such ~~distribution;~~ event OS0 = the number of ~~shares of~~ Common ~~Stock~~ Shares 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 ~~Stock~~ Shares issuable pursuant to such ~~rights, options or warrants; and~~ rights Y = the number of ~~shares of~~ Common ~~Stock~~ Shares equal to the aggregate offering price ~~payable to~~ 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, options~~ rights or warrants ~~divided~~ and dividing the product so obtained by ~~the average of the~~ such Closing Sale ~~Prices of Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution~~Price. ~~Any~~ Such adjustment ~~made under this Section 10.4(b) will be made successively whenever any such rights, options or warrants are issued and will~~ shall become effective immediately after the ~~Close~~ opening of ~~Business~~ business on the ~~Record Date for~~ day following the date of announcement of such ~~distribution~~issuance. To the extent that ~~shares of~~ Common ~~Stock~~ Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered ~~after the expiration of~~ pursuant to such ~~rights, options~~ rights or warrants, ~~including because~~ upon the ~~distributed rights, options~~ expiration or ~~warrants were not exercised~~termination of such rights or warrants, the Conversion Rate ~~will~~ shall be ~~decreased~~ readjusted to the Conversion Rate ~~that~~ which would then be in effect had the ~~increase with respect to~~ adjustments made upon the ~~distribution~~ issuance of such ~~rights, options~~ rights or warrants been made on the basis of the delivery of only the number of ~~shares of~~ Common ~~Stock~~ Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually delivered. If In the event that such ~~rights, options~~ rights or warrants are not so ~~distributed~~issued, the Conversion Rate ~~will~~ shall again be ~~decreased~~ adjusted to be the Conversion Rate ~~that~~ which would then be in effect if the ~~Ex-Dividend Date~~ date fixed for the determination of stockholders entitled to receive such ~~distribution~~ rights or warrants had not ~~occurred~~been fixed. ~~For purposes of this Section 10.4(b), in~~ In determining whether any ~~rights, options~~ rights or warrants entitle the ~~Purchaser~~ holders to subscribe for or purchase ~~shares of~~ Common ~~Stock~~ Shares at ~~a price that is~~ less than ~~the average of the~~ such Closing Sale ~~Prices~~ Price, and in determining the aggregate offering price of ~~the~~ such Common ~~Stock over the applicable ten (10) consecutive Trading Day period~~Shares, there ~~will~~ shall be taken into account any consideration ~~the Company receives~~ received for such ~~rights, options~~ rights 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 ~~Company’s board~~ Board of ~~directors. (i) If an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of shares~~ Directors 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, evidences of its indebtedness or other assets or property of the Company to all or substantially all holders of the Common Stock (excluding (A) dividends or distributions and rights, options or warrants as to which an adjustment was effected under Sections 10.4(a) or 10.4(b); (B) dividends or distributions paid exclusively in cash covered under Section 10.4(d); and (C) Spin-Offs), then the Conversion Rate will be calculated based on the following formula: CR = CR0 × ▇▇▇ ▇▇▇ – 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 ten (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 Company’s 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 adjustment made under the above portion of this Section 10.4(c) will 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 will 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, the Purchaser will 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 Bond, 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 ~~10.4(c)(i) (and subject in all respects to Section 10.4(f~~13.4(b)~~): (1) Rights~~, ~~options~~ rights or warrants distributed by the Company to all ~~or substantially all~~ holders of ~~the~~ its Common ~~Stock~~ Shares entitling them to subscribe for or purchase shares of the Company’s capital ~~stock, including Common Stock~~ stock (either initially or under certain circumstances), which ~~rights, options~~ rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): ): (a1) are deemed to be transferred with such ~~shares of the~~ Common ~~Stock;~~ Shares; (b2) are not exercisable; ~~and~~ and (c3) are also issued in respect of future issuances of ~~the~~ Common ~~Stock~~Shares, ~~will~~ shall be deemed not to have been distributed for purposes of this Section ~~10.4(c~~13.4(b) (and no adjustment to the Conversion ~~Rate~~ Price under this Section ~~10.4(c~~13.4(b) will be required) until the occurrence of the earliest Trigger Event, whereupon such ~~rights, options or~~ rights and warrants ~~will~~ shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate ~~will~~ shall be made under this Section ~~10.4(c). (2~~13.4(b) . If any such ~~right, option~~ right or warrant, including any such existing ~~rights, options~~ rights or warrants distributed prior to the ~~Closing~~date of this Indenture, are subject to events, upon the occurrence of which such ~~rights, options~~ 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 ~~will~~ shall be deemed to be the date of distribution and ~~the Record Date~~ record date with respect to new ~~rights, options~~ rights or warrants with such rights (~~in which case~~ and a termination or expiration of the existing ~~rights, options~~ rights or warrants ~~will 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, options~~ rights or warrants, or any Trigger Event or other event (of the type described in the ~~immediately~~ preceding ~~clause (2~~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 ~~10.4(c~~13.4(b) was made: , (a1) in the case of any such ~~rights, options~~ rights or warrants ~~that will~~ which shall all have been redeemed or ~~repurchased~~ purchased without exercise by any ~~holders~~ Holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase ~~(x) the Conversion Rate will be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate will then again be readjusted~~ to give effect to such ~~distribution, deemed~~ distribution or Trigger Event, as the case may be, as though it were a cash ~~distribution pursuant to Section 10.4(d)~~distribution, equal to the per share redemption or ~~repurchase~~ purchase price received by a holder ~~or holders~~ of Common ~~Stock~~ Shares with respect to such ~~rights, options~~ rights or warrants (assuming such holder had retained such ~~rights, options~~ rights or warrants), made to all applicable holders of Common ~~Stock~~ Shares as of the date of such redemption or repurchase~~; and~~ , and (b2) in the case of such ~~rights, options~~ rights or warrants ~~that~~ which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate ~~will~~ shall be readjusted as if such ~~rights, options~~ rights and warrants had not been issued. (4c) ~~For purposes~~ If the Company, at any time or from time to time while the Securities are outstanding, distributes to all or substantially all holders of ~~Sections 10.4(a)~~its Common Shares, ~~10.4(b) and 10.4(c)~~Common Shares of the Company, ~~if any dividend~~ evidences of its indebtedness or ~~distribution to which this Section 10.4(c) is applicable includes one or both of~~assets, including securities, but excluding: (ai) ~~a dividend~~ dividends or ~~distribution of shares of Common Stock~~ distributions referred to ~~which~~ in Section ~~10.4(a) is applicable (the “Clause A Distribution”~~13.4(a)~~; or~~; (bii) ~~an issuance of rights, options~~ rights or warrants referred to ~~which~~ in Section ~~10.4(b) is applicable (the “Clause B Distribution”~~13.4(b), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2iii) dividends or distributions referred to in Section 13.4(d); then the ~~Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any~~ Conversion Rate ~~adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then~~ shall be ~~made~~adjusted based on the following formula: where, ~~except that, if~~ 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 ~~Company (A) the “Record Date”~~ Board of Directors of the ~~Clause A Distribution and~~ Company) of the ~~Clause B Distribution will be deemed~~ Common Shares, evidences of indebtedness, assets or property distributed with respect to be each outstanding Common Share on the Record Date ~~of the Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding~~ for such distribution Such adjustment shall become effective immediately prior to the ~~Close~~ opening of ~~Business~~ business on the day following the Record Date ~~or immediately prior~~ 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 ~~Open~~ 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 ~~Business on such effective date” within~~ the ~~meaning~~ Common Shares. To the extent that the Company has a rights plan in effect upon conversion of ~~Section 10.4(a) or “outstanding immediately prior~~ the Securities into Common Shares, a Holder shall receive, in addition to the ~~Close~~ Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of ~~Business on~~ conversion, in which case the ~~Record Date” within~~ Conversion Rate will be adjusted as if the ~~meaning~~ Company distributed to all holders of ~~Section 10.4(b). (ii)~~ 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 ~~10.4(c~~13.4(c) where there has been ~~an Ex-Dividend Date for~~ a payment of a dividend or other distribution on the Common ~~Stock of~~ Shares or common shares ~~of capital stock~~ of any class or series, or similar equity interest, of or relating to a Subsidiary or other business ~~unit, that are, or, when issued, will be, listed or admitted for trading on a United States national securities exchange~~ unit (a “Spin-Off”), the Conversion Rate ~~will~~ 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 ~~calculated~~ 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 Record Date for the Spin-Off; CR~~ such distribution CR’ = the Conversion Rate in effect immediately after the Close of Business on the Record Date for the Spin-Off; FMV = the 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 (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first ten (10) consecutive Trading Day period commencing on, and including, the effective date for the Spin-Off (such period, the “Valuation Period”); and MP0 distribution FMV0 = the average of the Closing Sale Prices of the Common ~~Stock~~ Shares or similar equity interest distributed to holders of Common Shares applicable to one common share over the ~~Valuation Period.~~ 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 NYSE 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 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 NYSE 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 ~~of this Section 10.4(c)~~ will ~~be determined~~ occur on the ~~last day of the Valuation Period but will be given effect immediately~~ fourteenth Trading Day after the ~~Close of Business~~ date on ~~the Record Date for the Spin~~which “Ex-Off. In respect of any conversion during the Valuation Period for any Spin-Off, references within this Section 10.4(c)(ii) related to ten (10) Trading Days will be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the effective date Dividend Trading” commences for such ~~Spin-Off to, but excluding,~~ distribution on NYSE or such other national or regional exchange or market on which the ~~relevant Conversion Date~~Securities are then listed or quoted. (d) If ~~an Ex-Dividend Date occurs for a~~ any cash dividend or other distribution is made to all or substantially all holders of ~~the~~ Common ~~Stock (other than any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up)~~Shares, the Conversion Rate ~~will~~ shall be ~~recalculated~~ adjusted based on the following formula: ~~CR = CR0 × ▇▇▇ ▇▇▇ – C~~ where, CR0 = the Conversion Rate in effect ~~immediately prior to the Close of Business~~ on the Record Date for such ~~distribution; CR~~ distribution CR’ = the Conversion Rate in effect immediately after the ~~Close~~ Record Date for such distribution SP0 = the Current Market Price of ~~Business~~ one of the Common Shares on the Record Date for such distribution; SP0 = the average of the Closing Sale Prices of the Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and distribution C = the amount in cash per share the Company distributes to holders of Common ~~Stock the Company pays, or distributes, to all or substantially all holders of the Common Stock~~Shares. ~~Any~~ Such adjustment ~~made under this Section 10.4(d) will~~ shall become effective immediately after ~~the Close of Business~~ 5:00 p.m., New York City time, on the Record Date for such dividend or distribution~~. No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However,~~ ; provided that if ~~any~~ such dividend or distribution ~~described in this Section 10.4(d)~~ is ~~declared but~~ not so paid or made, the Conversion Rate ~~will~~ shall again be ~~readjusted~~ adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared~~. Notwithstanding~~ . (e) If the ~~foregoing~~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, ~~if “C”~~ 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 ~~defined above~~determined by the Board of Directors) ~~is equal to or greater than “SP0” (as defined above), in lieu~~ of the ~~foregoing increase~~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 ~~Purchaser will receive~~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, ~~for each $1,000 principal amount of~~ the ~~Bond, at~~ following terms shall have the ~~sam~~meaning indicated:

Appears in 1 contract

Sources: Indenture (Endeavour Silver Corp)

Conversion Rate Adjustments. The Conversion Rate ~~will~~ shall be ~~subject to adjustments~~ adjusted from time to ~~time~~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 ~~duplication, upon the occurrence of any of the following events:~~having to convert their Securities. (a) If the ~~Company (i) issues solely shares~~ Company, at any time or from time to time while any of ~~Common Stock as~~ the Securities are outstanding, pays a dividend or make a distribution on in Common Shares to all holders of its ~~shares of~~ outstanding Common ~~Stock~~Shares, ~~(ii)~~ or if the Company subdivides or combines its Common ~~Stock or (iii) combines Common Stock,~~ Shares then the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: ~~CR = CR0 × OS OS0~~ where, CR0 = the Conversion Rate in effect immediately prior to such event CR’ = the ~~Close~~ Conversion Rate in effect immediately after such event OS0 = the number of ~~Business~~ 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 ~~immediately prior to~~ the ~~Open of Business on the effective~~ date ~~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~~ fixed for determination for such share split or share combination. If any dividend or ~~distribution, or immediately after~~ distribution of 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 10.4(a) will 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 such dividend, distribution, subdivision or combination type described in this Section ~~10.4(a~~13.4(a) is declared but not so paid or made, the Conversion Rate ~~will~~ shall again be ~~immediately readjusted, effective as of the date the Company’s board of directors determines not to pay such dividend or distribution or to effect such subdivision or combination,~~ adjusted to the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been ~~declared or such subdivision or combination had not been announced~~declared. (b) If ~~an Ex-Dividend Date occurs for a distribution~~ 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 ~~Stock of any rights, options~~ Shares certain rights or warrants ~~entitling such holders for a period of not more than sixty (60) calendar days from the announcement date for such distribution~~ to ~~subscribe for or~~ purchase ~~shares of~~ Common ~~Stock~~ Shares (or securities convertible into or exchangeable or exercisable for Common ~~Stock),~~ Shares) at a price per share (or having a conversion, exchange or exercise price per share) less than the ~~average of the~~ Closing Sale ~~Prices~~ Price of Common Shares on the ~~Common Stock~~ Record Date for ~~the ten (10) consecutive Trading Day period ending on~~shareholders entitled to receive such rights and warrants, ~~and including, the Trading Day immediately preceding the announcement date~~ which rights or warrants are exercisable for ~~such distribution~~not more than 60 days, the Conversion Rate ~~will~~ shall be ~~calculated~~ adjusted based on the following ~~formula: CR = CR0 × OS0 + X OS0 + Y~~ 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 Close of Business on the Record Date for~~ such ~~distribution; CR~~ event CR’ = the Conversion Rate in effect immediately after ~~the Close of Business on the Record Date for~~ such ~~distribution;~~ event OS0 = the number of ~~shares of~~ Common ~~Stock~~ Shares 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 ~~Stock~~ Shares issuable pursuant to such ~~rights, options or warrants; and~~ rights Y = the number of ~~shares of~~ Common ~~Stock~~ Shares equal to the aggregate offering price ~~payable to~~ 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, options~~ rights or warrants ~~divided~~ and dividing the product so obtained by ~~the average of the~~ such Closing Sale ~~Prices of Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution~~Price. ~~Any~~ Such adjustment ~~made under this Section 10.4(b) will be made successively whenever any such rights, options or warrants are issued and will~~ shall become effective immediately after the ~~Close~~ opening of ~~Business~~ business on the ~~Record Date for~~ day following the date of announcement of such ~~distribution~~issuance. To the extent that ~~shares of~~ Common ~~Stock~~ Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered ~~after the expiration of~~ pursuant to such ~~rights, options~~ rights or warrants, ~~including because~~ upon the ~~distributed rights, options~~ expiration or ~~warrants were not exercised~~termination of such rights or warrants, the Conversion Rate ~~will~~ shall be ~~decreased~~ readjusted to the Conversion Rate ~~that~~ which would then be in effect had the ~~increase with respect to~~ adjustments made upon the ~~distribution~~ issuance of such ~~rights, options~~ rights or warrants been made on the basis of the delivery of only the number of ~~shares of~~ Common ~~Stock~~ Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually delivered. If In the event that such ~~rights, options~~ rights or warrants are not so ~~distributed~~issued, the Conversion Rate ~~will~~ shall again be ~~decreased~~ adjusted to be the Conversion Rate ~~that~~ which would then be in effect if the ~~Ex-Dividend Date~~ date fixed for the determination of stockholders entitled to receive such ~~distribution~~ rights or warrants had not ~~occurred~~been fixed. ~~For purposes of this Section 10.4(b), in~~ In determining whether any ~~rights, options~~ rights or warrants entitle the ~~Purchaser~~ holders to subscribe for or purchase ~~shares of~~ Common ~~Stock~~ Shares at ~~a price that is~~ less than ~~the average of the~~ such Closing Sale ~~Prices~~ Price, and in determining the aggregate offering price of ~~the~~ such Common ~~Stock over the applicable ten (10) consecutive Trading Day period~~Shares, there ~~will~~ shall be taken into account any consideration ~~the Company receives~~ received for such ~~rights, options~~ rights 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 ~~Company’s board~~ Board of ~~directors. (i) If an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of shares~~ Directors 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, evidences of its indebtedness or other assets or property of the Company to all or substantially all holders of the Common Stock (excluding (A) dividends or distributions and rights, options or warrants as to which an adjustment was effected under Sections 10.4(a) or 10.4(b); (B) dividends or distributions paid exclusively in cash covered under Section 10.4(d); and (C) Spin-Offs), then the Conversion Rate will be calculated based on the following formula: CR = CR0 × ▇▇▇ ▇▇▇ – 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 ten (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 Company’s 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 adjustment made under the above portion of this Section 10.4(c) will 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 will 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, the Purchaser will 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 Bond, 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 ~~10.4(c)(i) (and subject in all respects to Section 10.4(f~~13.4(b)~~): (1) Rights~~, ~~options~~ rights or warrants distributed by the Company to all ~~or substantially all~~ holders of ~~the~~ its Common ~~Stock~~ Shares entitling them to subscribe for or purchase shares of the Company’s capital ~~stock, including Common Stock~~ stock (either initially or under certain circumstances), which ~~rights, options~~ rights or warrants, until the occurrence of a specified event or events (a “Trigger Event”): ): (a1) are deemed to be transferred with such ~~shares of the~~ Common ~~Stock;~~ Shares; (b2) are not exercisable; ~~and~~ and (c3) are also issued in respect of future issuances of ~~the~~ Common ~~Stock~~Shares, ~~will~~ shall be deemed not to have been distributed for purposes of this Section ~~10.4(c~~13.4(b) (and no adjustment to the Conversion ~~Rate~~ Price under this Section ~~10.4(c~~13.4(b) will be required) until the occurrence of the earliest Trigger Event, whereupon such ~~rights, options or~~ rights and warrants ~~will~~ shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate ~~will~~ shall be made under this Section ~~10.4(c~~13.4(b)~~. (2)~~ . If any such ~~right, option~~ right or warrant, including any such existing ~~rights, options~~ rights or warrants distributed prior to the ~~Closing~~date of this Indenture, are subject to events, upon the occurrence of which such ~~rights, options~~ 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 ~~will~~ shall be deemed to be the date of distribution and ~~the Record Date~~ record date with respect to new ~~rights, options~~ rights or warrants with such rights (~~in which case~~ and a termination or expiration of the existing ~~rights, options~~ rights or warrants ~~will 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, options~~ rights or warrants, or any Trigger Event or other event (of the type described in the ~~immediately~~ preceding ~~clause (2~~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 ~~10.4(c~~13.4(b) was made: , (a1) in the case of any such ~~rights, options~~ rights or warrants ~~that will~~ which shall all have been redeemed or ~~repurchased~~ purchased without exercise by any ~~holders~~ Holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase ~~(x) the Conversion Rate will be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate will then again be readjusted~~ to give effect to such ~~distribution, deemed~~ distribution or Trigger Event, as the case may be, as though it were a cash ~~distribution pursuant to Section 10.4(d)~~distribution, equal to the per share redemption or ~~repurchase~~ purchase price received by a holder ~~or holders~~ of Common ~~Stock~~ Shares with respect to such ~~rights, options~~ rights or warrants (assuming such holder had retained such ~~rights, options~~ rights or warrants), made to all applicable holders of Common ~~Stock~~ Shares as of the date of such redemption or repurchase~~; and~~ , and (b2) in the case of such ~~rights, options~~ rights or warrants ~~that~~ which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate ~~will~~ shall be readjusted as if such ~~rights, options~~ rights and warrants had not been issued. (4c) ~~For purposes~~ If the Company, at any time or from time to time while the Securities are outstanding, distributes to all or substantially all holders of ~~Sections 10.4(a)~~its Common Shares, ~~10.4(b) and 10.4(c)~~Common Shares of the Company, ~~if any dividend~~ evidences of its indebtedness or ~~distribution to which this Section 10.4(c) is applicable includes one or both of~~assets, including securities, but excluding: (ai) ~~a dividend~~ dividends or ~~distribution of shares of Common Stock~~ distributions referred to ~~which~~ in Section ~~10.4(a) is applicable (the “Clause A Distribution”~~13.4(a)~~; or~~; (bii) ~~an issuance of rights, options~~ rights or warrants referred to ~~which~~ in Section ~~10.4(b) is applicable (the “Clause B Distribution”~~13.4(b), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2iii) dividends or distributions referred to in Section 13.4(d); then the ~~Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any~~ Conversion Rate ~~adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then~~ shall be ~~made~~adjusted based on the following formula: where, ~~except that, if~~ 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 ~~Company (A) the “Record Date”~~ Board of Directors of the ~~Clause A Distribution and~~ Company) of the ~~Clause B Distribution will be deemed~~ Common Shares, evidences of indebtedness, assets or property distributed with respect to be each outstanding Common Share on the Record Date ~~of the Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding~~ for such distribution Such adjustment shall become effective immediately prior to the ~~Close~~ opening of ~~Business~~ business on the day following the Record Date ~~or immediately prior~~ 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 ~~Open~~ 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 ~~Business on such effective date” within~~ the ~~meaning~~ Common Shares. To the extent that the Company has a rights plan in effect upon conversion of ~~Section 10.4(a) or “outstanding immediately prior~~ the Securities into Common Shares, a Holder shall receive, in addition to the ~~Close~~ Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of ~~Business on~~ conversion, in which case the ~~Record Date” within~~ Conversion Rate will be adjusted as if the ~~meaning~~ Company distributed to all holders of ~~Section 10.4(b). (ii)~~ 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 ~~10.4(c~~13.4(c) where there has been ~~an Ex-Dividend Date for~~ a payment of a dividend or other distribution on the Common ~~Stock of~~ Shares or common shares ~~of capital stock~~ of any class or series, or similar equity interest, of or relating to a Subsidiary or other business ~~unit, that are, or, when issued, will be, listed or admitted for trading on a United States national securities exchange~~ unit (a “Spin-Off”), the Conversion Rate ~~will~~ 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 ~~calculated~~ 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 Record Date for the Spin-Off; CR~~ such distribution CR’ = the Conversion Rate in effect immediately after the Close of Business on the Record Date for the Spin-Off; FMV = the 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 (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first ten (10) consecutive Trading Day period commencing on, and including, the effective date for the Spin-Off (such period, the “Valuation Period”); and MP0 distribution FMV0 = the average of the Closing Sale Prices of the Common ~~Stock~~ Shares or similar equity interest distributed to holders of Common Shares applicable to one common share over the ~~Valuation Period.~~ 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 NYSE 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 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 NYSE 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 ~~of this Section 10.4(c)~~ will ~~be determined~~ occur on the ~~last day of the Valuation Period but will be given effect immediately~~ fourteenth Trading Day after the ~~Close of Business~~ date on ~~the Record Date for the Spin~~which “Ex-Off. In respect of any conversion during the Valuation Period for any Spin-Off, references within this Section 10.4(c)(ii) related to ten (10) Trading Days will be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the effective date Dividend Trading” commences for such ~~Spin-Off to, but excluding,~~ distribution on NYSE MKT or such other national or regional exchange or market on which the ~~relevant Conversion Date~~Securities are then listed or quoted. (d) If ~~an Ex-Dividend Date occurs for a~~ any cash dividend or other distribution is made to all or substantially all holders of ~~the~~ Common ~~Stock (other than any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up)~~Shares, the Conversion Rate ~~will~~ shall be ~~recalculated~~ adjusted based on the following formula: ~~CR = CR0 × ▇▇▇ ▇▇▇ – C~~ where, CR0 = the Conversion Rate in effect ~~immediately prior to the Close of Business~~ on the Record Date for such ~~distribution; CR~~ distribution CR’ = the Conversion Rate in effect immediately after the ~~Close~~ Record Date for such distribution SP0 = the Current Market Price of ~~Business~~ one of the Common Shares on the Record Date for such distribution; SP0 = the average of the Closing Sale Prices of the Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and distribution C = the amount in cash per share the Company distributes to holders of Common ~~Stock the Company pays, or distributes, to all or substantially all holders of the Common Stock~~Shares. ~~Any~~ Such adjustment ~~made under this Section 10.4(d) will~~ shall become effective immediately after ~~the Close of Business~~ 5:00 p.m., New York City time, on the Record Date for such dividend or distribution~~. No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However,~~ ; provided that if ~~any~~ such dividend or distribution ~~described in this Section 10.4(d)~~ is ~~declared but~~ not so paid or made, the Conversion Rate ~~will~~ shall again be ~~readjusted~~ adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared~~. Notwithstanding~~ . (e) If the ~~foregoing~~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, ~~if “C”~~ 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 ~~defined above~~determined by the Board of Directors) ~~is equal to or greater than “SP0” (as defined above), in lieu~~ of the ~~foregoing increase~~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 ~~Purchaser will receive~~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, ~~for each $1,000 principal amount of~~ the ~~Bond, at~~ following terms shall have the ~~sam~~meaning indicated:

Appears in 1 contract

Sources: Indenture (Endeavour Silver Corp)

Conversion Rate Adjustments. The ~~Conversion Rate will be subject to adjustments~~ Company shall adjust the conversion rate from time to ~~time, without duplication, upon the occurrence of any of the following events~~time as follows: (ai) If the Company ~~(i)~~ issues ~~solely~~ shares of Common Stock as a dividend or distribution on ~~its~~ shares of Common Stock to all holders of Common Stock, ~~(ii) subdivides Common Stock~~ or ~~(iii) combines Common Stock~~if the Company effects a share split or share combination, the ~~Conversion Rate will~~ conversion rate shall be ~~calculated~~ adjusted based on the following formula: CR CR1 = CR0 × x OS1/OS ~~OS0 where,~~ 0 where CR0 = the ~~Conversion Rate~~ conversion rate in effect immediately prior to the ~~Close of Business on the Record Date~~ ex-dividend date for such dividend or distribution, or ~~immediately prior to the Open of Business on~~ the effective date of such ~~subdivision~~ share split or ~~combination of Common Stock, as the case may be~~share combination; CR CR1 = the ~~Conversion Rate~~ new conversion rate in effect immediately on and after the ~~Close of Business on the Record Date~~ ex-dividend date for such dividend or distribution, or ~~immediately after the Open of Business on~~ the effective date of such ~~subdivision~~ share split or ~~combination~~ share combination; OS1 = the number of shares of Common ~~Stock~~Stock outstanding immediately after such dividend or distribution, as or the ~~case may be~~effective date of such share split or share combination; and 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~~ share split 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 beshare combination. Any adjustment made ~~under~~ pursuant to this ~~Section 10.4(a~~paragraph (i) ~~will~~ shall become effective ~~immediately after~~ at the ~~Close~~ open of ~~Business~~ business on (x) the ~~Record Date~~ ex-dividend date for such dividend or ~~distribution,~~ other distribution or ~~immediately after~~ (y) the ~~Open of Business~~ date on ~~the effective date of~~ which such ~~subdivision~~ split or combination ~~of Common Stock~~becomes effective, as ~~the case may be~~applicable. If ~~such dividend, distribution, subdivision~~ any dividend or ~~combination~~ distribution described in this ~~Section 10.4(a~~paragraph (i) is declared but not so paid or made, the ~~Conversion Rate will~~ new conversion rate shall be ~~immediately readjusted, effective as of the date the Company’s board of directors determines not to pay such dividend or distribution or to effect such subdivision or combination,~~ readjusted to the ~~Conversion Rate~~ conversion rate that would then be in effect if such dividend or distribution had not been ~~declared or such subdivision or combination had not been announced~~declared. (bii) If ~~an Ex-Dividend Date occurs for a distribution~~ the Company distributes to ~~all or substantially~~ all holders of Common Stock of any rights, warrants or options ~~or warrants~~ entitling ~~such holders~~ them, for a period of expiring not more than ~~sixty (60) calendar~~ 45 days ~~from~~ after the ~~announcement~~ date ~~for~~ of issuance of such ~~distribution~~ rights, warrants or options, to subscribe for or purchase shares of Common Stock ~~(or securities convertible into Common Stock),~~ at a price per share that is less than the ~~average of the~~ Closing Sale ~~Prices~~ Price per share of ~~the~~ Common Stock ~~for~~ on the ~~ten (10) consecutive Trading Day period ending on, and including, the Trading Day~~ business day immediately preceding the time of announcement ~~date for~~ of such distribution, the ~~Conversion Rate will be calculated~~ Company shall adjust the conversion rate based on the following formula: CR CR1 = CR0 ~~× OS0 + X OS0 + Y where,~~ x (OS0+X)/(OS 0+Y) where CR0 = the ~~Conversion Rate~~ conversion rate in effect immediately prior to the ~~Close of Business on the Record Date~~ ex-dividend date for such distribution; CR CR1 = the ~~Conversion Rate~~ new conversion rate in effect immediately on and after the ~~Close of Business on the Record Date~~ ex-dividend date for such distribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the ~~Close of Business on the Record Date~~ ex-dividend date for such distribution; X = the ~~total~~ aggregate number of shares of Common Stock issuable pursuant to such rights, ~~options~~ warrants or ~~warrants~~options; and Y = the number of shares of Common Stock equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants or options ~~or warrants divided by~~ and (B) the average of the Closing Sale ~~Prices~~ Price per share of Common Stock ~~over~~ for the ~~ten (10)~~ 10 consecutive Trading ~~Day period~~ Days ending ~~on, and including,~~ on the ~~Trading Day~~ business day immediately preceding the date of announcement ~~date~~ for ~~such distribution. Any adjustment made under this Section 10.4(b) will be made successively whenever any such rights, options or warrants are issued and will become effective immediately after~~ the ~~Close of Business on the Record Date for such distribution. To the extent that shares of Common Stock are not delivered after the expiration~~ issuance of such rights, ~~options~~ warrants or warrants, including because the distributed rights, options or warrants were not exercised, the Conversion Rate will be decreased to the Conversion Rate that would then be in effect had the increase with respect to the distribution of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so distributed, the Conversion Rate will be decreased to the Conversion Rate that would then be in effect if the Ex-Dividend Date for such distribution had not occurredoptions. For purposes of this ~~Section 10.4(b~~paragraph (ii), in determining whether any rights, warrants or options ~~or warrants~~ entitle the ~~Purchaser~~ holders of shares of Common Stock to subscribe for or purchase shares of Common Stock at ~~a price that is~~ less than the ~~average of the~~ applicable Closing Sale ~~Prices~~ Price per share of Common Stock, and in determining the aggregate exercise or conversion price payable for such shares of Common ~~Stock over the applicable ten (10) consecutive Trading Day period~~Stock, there ~~will~~ shall be taken into account any consideration the Company receives for such rights, warrants or options ~~or warrants~~ 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 Company’s board of directors. If any right, warrant or option described in this paragraph (ii) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the Company shall adjust the new conversion rate to the conversion rate that would then be in effect if such right, warrant or option had not been so issued. (iiii) If ~~an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of~~ the Company distributes shares of ~~the Company’s~~ its capital stock, ~~evidences~~ evidence 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, evidences of its indebtedness or other assets or property of the Company to all or substantially~~ all holders of ~~the~~ Common ~~Stock (~~Stock, excluding (A) ~~dividends or distributions and~~ dividends, distributions, rights, warrants or options ~~or warrants as~~ referred to ~~which an adjustment was effected under Sections 10.4(a~~in paragraph (i) or ~~10.4(b)~~(ii) above; (B) dividends or distributions paid exclusively in ~~cash covered under Section 10.4(d)~~cash; and (C) ~~Spin~~spin-~~Offs)~~offs, as described below in this paragraph (iii) then the ~~Conversion Rate will be calculated~~ Company shall adjust the conversion rate based on the following formula: CR CR1 = CR0 ~~× ▇▇▇ ▇▇▇~~ x SP0/(SP 0 – ~~FMV where, CR0~~ FMV) where CR 0 = the ~~Conversion Rate~~ conversion rate in effect immediately prior to the ~~Close of Business on the Record Date~~ ex-dividend date for such distribution; CR CR1 = the ~~Conversion Rate~~ new conversion rate in effect immediately on and after the ~~Close of Business on the Record Date~~ ex-dividend date for such distribution; SP0 = the average of the Closing Sale ~~Prices~~ Price per share of ~~the~~ Common Stock ~~over~~ for the ~~ten (10)~~ 10 consecutive Trading ~~Day period~~ Days ending ~~on, and including,~~ on the ~~Trading Day~~ business day immediately preceding the Exex-~~Dividend Date~~ dividend date for such distribution; and FMV = the fair market value (as determined in good faith by the Company’s 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 on the earlier of the ~~Open of Business on~~ record date or the Exex-~~Dividend Date~~ dividend date for such distribution. Any adjustment made under the above portion of this Section 10.4(c) will 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 will be readjusted to be the Conversion Rate ; provided that ~~would then be in effect if such distribution had not been declared. Notwithstanding the foregoing,~~ if “FMV” ~~(as defined above)~~ with respect to any distribution of shares of capital stock, evidences of indebtedness or other assets or property of the Company is equal to or greater than “SP0” ~~(as defined above)~~with respect to such distribution, then in lieu of the foregoing ~~increase~~adjustment, adequate provision shall be made so that each holder of Series D Preferred Stock shall have the ~~Purchaser will receive~~right to receive on the date such shares of capital stock, ~~in respect~~ evidences of ~~each $1,000 principal amount thereof, at~~ indebtedness or other assets or property of the ~~same time and upon the same terms as~~ Company are distributed to holders of ~~the~~ Common Stock, ~~without having to convert its Bond~~for each share of Series D Preferred Stock, the amount ~~and kind~~ of shares of capital stock, evidences of indebtedness or other assets or property of the ~~Relevant Distribution that~~ Company such holder of Series D Preferred Stock would have received if had such holder of Series D Preferred Stock owned a number of shares of Common Stock equal to a fraction the ~~Conversion Rate~~ numerator of which is the product of the conversion rate in effect on the ~~Record Date~~ ex-dividend date for such distribution, and the ~~distribution~~aggregate liquidation preference of Series D Preferred Stock held by such holder and the denominator of which is twenty-five ($25.00). For purposes of this Section 10.4(c)(i) (and subject in all respects to Section 10.4(f)): (1) Rights, options or warrants distributed by the Company to all or substantially all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s capital stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (a) are deemed to be transferred with such shares of the Common Stock; (b) are not exercisable; and (c) are also issued in respect of future issuances of the Common Stock, will be deemed not to have been distributed for purposes of this Section 10.4(c) (and no An adjustment to the ~~Conversion Rate under this Section 10.4(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants will be deemed~~ conversion rate made pursuant to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate will be made under this Section 10.4(c). (2) If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the Closing, are subject to events, upon the occurrence of which such 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 will be deemed to be the date of distribution and the Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants will 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, options or warrants, or any Trigger Event or other event of the type described in the immediately preceding ~~clause (2) with respect thereto that was counted~~ paragraph shall become effective on the ex-dividend date for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 10.4(c) was made: (a) in the case of any such rights, options or warrants that will all have been redeemed or repurchased without exercise by any holders thereof, upon such final redemption or repurchase (x) the Conversion Rate will be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate will then again be readjusted to give effect to such distribution~~, deemed distribution or Trigger Event, as~~ . If the case may be, as though it were a cash distribution pursuant to Section 10.4(d), equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made Company distributes to all holders of Common Stock as of the date of such redemption or repurchase; and (b) in the case of such rights, options or warrants that have expired or been terminated without exercise by any holders thereof, the Conversion Rate will be readjusted as if such rights, options and warrants had not been issued. (4) For purposes of Sections 10.4(a), 10.4(b) and 10.4(c), if any dividend or distribution to which this Section 10.4(c) is applicable includes one or both of: (a) a dividend or distribution of shares of Common Stock to which Section 10.4(a) is applicable (the “Clause A Distribution”); or (b) an issuance of rights, options or warrants to which Section 10.4(b) is applicable (the “Clause B Distribution”), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2) the Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then be made, except that, if determined by the Company (A) the “Record Date” of the Clause A Distribution and the Clause B Distribution will be deemed to be the Record Date of the Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding immediately prior to the Close of Business on the Record Date or immediately prior to the Open of Business on such effective date” within the meaning of Section 10.4(a) or “outstanding immediately prior to the Close of Business on the Record Date” within the meaning of Section 10.4(b). (ii) With respect to an adjustment pursuant to this Section 10.4(c) where there has been an Ex-Dividend Date for a dividend or other distribution on the Common Stock of shares of capital stock of any class or series, or similar equity interest, of or relating to ~~a Subsidiary~~ one of the Company’s subsidiaries or other business ~~unit, that are, or, when issued, will be, listed or admitted for trading on a United States national securities exchange~~ unit (a “~~Spin~~spin-~~Off~~off”), ) the ~~Conversion Rate will~~ conversion rate in effect immediately before the 10th Trading Day from and including the effective date of the spin-off shall be ~~calculated~~ adjusted based on the following formula: CR CR1 = CR0 ~~× FMV +~~ x (FMV0+MP 0 )/ MP0 ~~MP0 where, CR0~~ where CR 0 = the ~~Conversion Rate~~ conversion rate in effect immediately prior to the ~~Close~~ 10th Trading Day immediately following, and including, the effective date of ~~Business on~~ the ~~Record Date for the Spin~~spin-~~Off~~off; CR CR1 = the ~~Conversion Rate~~ new conversion rate in effect immediately on and after the ~~Close~~ 10th Trading Day immediately following, and including, the effective date of ~~Business on~~ the ~~Record Date for the Spin~~spin-~~Off~~off; ~~FMV~~ FMV0 = the average of the Closing Sale Prices per share of the capital stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock ~~(determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest)~~ over the first ~~ten (10)~~ 10 consecutive Trading ~~Day period commencing on, and including,~~ Days after the effective date ~~for~~ of the ~~Spin~~spin-~~Off (such period, the “Valuation Period”)~~off; and MP0 = the average of the Closing Sale Prices per share of ~~the~~ Common Stock over the ~~Valuation Period~~first 10 consecutive Trading Days after the effective date of the spin-off. ~~The~~ An adjustment to the ~~Conversion Rate under~~ conversion rate made pursuant to the immediately preceding paragraph ~~of this Section 10.4(c) will be determined~~ shall occur on the ~~last day~~ 10th Trading Day from and including the effective date of the ~~Valuation Period but will be given effect immediately after the Close of Business on the Record Date for the Spin~~spin-~~Off. In~~ off; provided that in respect of any conversion ~~during~~ within the ~~Valuation Period for~~ 10 Trading Days following the effective date of any ~~Spin~~spin-~~Off~~off, references within this ~~Section 10.4(c)(ii~~paragraph (iii) ~~related~~ to ~~ten (10)~~ 10 Trading Days ~~will~~ shall be deemed ~~to be~~ replaced with such lesser number of Trading Days as have elapsed ~~from, and including,~~ between the effective date ~~for~~ of such ~~Spin~~spin-~~Off to,~~ off and the Conversion Date in determining the applicable conversion rate. If any such dividend or distribution described in this paragraph (iii) is declared but ~~excluding~~not paid or made, the ~~relevant Conversion Date~~new conversion rate shall be re-adjusted to be the conversion rate that would then be in effect if such dividend or distribution had not been declared. (div) If ~~an Ex-Dividend Date occurs for a~~ the Company makes any cash dividend or distribution to all ~~or substantially all~~ holders of ~~the~~ outstanding shares of Common Stock (~~other than~~ excluding any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up) during any of its quarterly fiscal periods in an aggregate amount that, together with other cash dividends or distributions made during such quarterly fiscal period, exceeds the product of $0.31 (subject to adjustment) (the “reference dividend”), multiplied by the ~~Conversion Rate will~~ number of shares of Common Stock outstanding on the record date for such distribution, the conversion rate shall be ~~recalculated~~ adjusted based on the following formula: CR CR1 = CR0 ~~× ▇▇▇ ▇▇▇~~ x SP0/(SP 0 – ~~C where, CR0~~ C) where CR 0 = the ~~Conversion Rate~~ conversion rate in effect immediately prior to the ~~Close of Business on the Record Date~~ ex-dividend date for such distribution; CR CR1 = the ~~Conversion Rate~~ new conversion rate in effect immediately after the ~~Close of Business on the Record Date~~ ex-dividend date for such distribution; SP0 = the average of the Closing Sale ~~Prices~~ Price per share of ~~the~~ Common Stock ~~over~~ for the ~~ten (10)~~ 10 consecutive Trading ~~Day period~~ Days ending ~~on, and including,~~ on the ~~Trading Day~~ business day immediately preceding the Exearlier of the record date or the day prior to the ex-~~Dividend Date~~ dividend date for such distribution; and C = the amount in cash per share that the Company distributes to holders of Common Stock that exceeds the ~~Company pays~~reference dividend; provided that if “C” with respect to any such cash dividend or distribution is equal to or greater than “SP0” with respect to any such cash dividend or distribution, ~~or distributes~~then in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of Series D Preferred Stock shall have the right to ~~all or substantially all~~ receive on the date such cash is distributed to holders of ~~the~~ Common Stock, for each share of Series D Preferred Stock, the amount of cash such holder of Series D Preferred Stock would have received had such holder of Series D Preferred Stock owned a number of shares of Common Stock equal to a fraction the numerator of which is the product of the conversion rate in effect on the ex-dividend date for such dividend or distribution, and the aggregate principal amount of Series D Preferred Stock held by such holder and the denominator of which is twenty-five ($25.00). ~~Any~~ An adjustment to the conversion rate made ~~under~~ pursuant to this ~~Section 10.4(d~~paragraph (iv) ~~will~~ shall become effective ~~immediately after the Close of Business~~ on the ~~Record Date~~ ex-dividend date for such dividend or distribution. ~~No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if~~ If any dividend or distribution described in this ~~Section 10.4(d~~paragraph (iv) is declared but not so paid or made, the ~~Conversion Rate will~~ new conversion rate shall be ~~readjusted~~ re-adjusted to the ~~Conversion Rate~~ conversion rate that would then be in effect if such dividend or distribution had not been declared. The reference dividend amount is subject to adjustment in a manner inversely proportional to adjustments to the conversion rate; provided that no adjustment shall be made to the reference dividend amount for any adjustment made to the conversion rate under this paragraph (iv). Notwithstanding the foregoing, if ~~“C”~~ an adjustment is required to be made under this paragraph (iv) as a result of a distribution that is not a quarterly dividend, the reference dividend amount shall be deemed to be zero. (v) If the Company or any of its subsidiaries makes a payment in respect of a tender offer or exchange offer for shares of Common Stock to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Closing Sale Price per share of Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender offer or exchange offer, the conversion rate shall be adjusted based on the following formula: CR1 = CR0 × (AC + (SP1 × OS1))/(SP 1 × OS0) where CR 0 = the conversion rate in effect on the day immediately following the date such tender or exchange offer expires; CR1 = the conversion rate in effect on the second day immediately following the date such tender or exchange offer expires; AC = the aggregate value of all cash and any other consideration (as ~~defined above~~determined by the Company’s board of directors) ~~is equal~~ paid or payable for shares of Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the date such tender or ~~greater than “SP0”~~ exchange offer expires; OS1 = the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (~~as defined above~~after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer)~~, in lieu~~ ; and SP1 = the Closing Sale Price per share of Common Stock for the Trading Day immediately following the date such tender or exchange offer expires. If the application of the foregoing ~~increase~~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 (v) shall become effective on the second day immediately following the date such tender offer or exchange offer expires. If the Company or one of its subsidiaries is obligated to purchase shares of Common Stock pursuant to any such tender or exchange offer but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the ~~Purchaser will~~ Company shall re-adjust the new conversion rate to be the conversion rate that would be in effect if such tender or exchange offer had not been made. (vi) If the Company has in effect a rights plan while any shares of Series D Preferred Stock remain outstanding, holders of shares of Series D Preferred Stock shall receive, upon a conversion of such shares in respect of which the Company has elected to deliver shares of Common Stock, in addition to such shares of Common Stock, rights under the Company’s stockholder rights agreement unless, prior to conversion, the rights have expired, terminated or been redeemed or unless the rights have separated from Common Stock. If the rights provided for ~~each $1,000 principal amount~~ in any rights plan that the Company’s board of directors may adopt have separated from the Common Stock in accordance with the provisions of the ~~Bond~~applicable stockholder rights agreement so that holders of shares of Series D Preferred Stock would not be entitled to receive any rights in respect of Common Stock that the Company elects to deliver upon conversion of shares of Series D Preferred Stock, the Company shall adjust the conversion rate at the ~~sam~~time of separation as if the Company had distributed to all holders of the Company’s capital stock, evidences of indebtedness or other assets or property pursuant to paragraph (iii) above, subject to readjustment upon the subsequent expiration, termination or redemption of the rights. (vii) Notwithstanding the foregoing, in the event of an adjustment to the conversion rate pursuant to paragraphs (iv) and (v) above, in no event shall the conversion rate exceed 0.6997 shares of Common Stock per $25.00 liquidation preference, subject to adjustment pursuant to paragraphs (i), (ii) and (iii) above. In no event shall the Conversion Price be reduced below $0.01, subject to adjustment for share splits and combinations and similar events. (viii) The Company shall not make any adjustment to the conversion rate if holders of shares of Series D Preferred Stock are permitted to participate, on an as-converted basis, in the transactions described in paragraphs (i) through (vi) above. (ix) The conversion rate shall not be adjusted except as specifically set forth in this Section 8 to these Articles Supplementary. Without limiting the foregoing, the conversion rate shall not be adjusted for (A) the issuance of any shares of Common Stock pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Company’s securities or those of the Operating Partnership and the investment of additional optional amounts in shares of Common Stock under any plan; (B) the issuance of any shares of Common Stock or options or rights to purchase such shares pursuant to any of the Company’s present or future employee, director,

Appears in 1 contract

Sources: Revolving Credit Agreement (Digital Realty Trust, L.P.)

Conversion Rate Adjustments. The Conversion Rate ~~will~~ shall be ~~subject to adjustments~~ adjusted from time to ~~time~~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 ~~duplication, upon the occurrence of any of the following events:~~having to convert their Securities. (a) If the ~~Company (i) issues solely shares~~ Company, at any time or from time to time while any of ~~Common Stock as~~ the Securities are outstanding, pays a dividend or make a distribution on in Common Shares to all holders of its ~~shares of~~ outstanding Common ~~Stock~~Shares, ~~(ii)~~ or if the Company subdivides or combines its Common ~~Stock or (iii) combines Common Stock,~~ Shares then the Conversion Rate will be ~~calculated~~ adjusted based on the following formula: ~~CR = CR0 × OS OS0~~ where, CR0 = the Conversion Rate in effect immediately prior to such event CR' = the ~~Close~~ Conversion Rate in effect immediately after such event OS0 = the number of ~~Business~~ 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 ~~immediately prior to~~ the ~~Open of Business on the effective~~ date ~~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~~ fixed for determination for such share split or share combination. If any dividend or ~~distribution, or immediately after~~ distribution of 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 10.4(a) will 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 such dividend, distribution, subdivision or combination type described in this Section ~~10.4(a~~11.04(a) is declared but not so paid or made, the Conversion Rate ~~will~~ shall again be ~~immediately readjusted, effective as of the date the Company’s board of directors determines not to pay such dividend or distribution or to effect such subdivision or combination,~~ adjusted to the Conversion Rate ~~that~~ which would then be in effect if such dividend or distribution had not been ~~declared or such subdivision or combination had not been announced~~declared. (b) If ~~an Ex-Dividend Date occurs for a distribution~~ 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 ~~Stock of any rights, options~~ Shares certain rights or warrants ~~entitling such holders for a period of not more than sixty (60) calendar days from the announcement date for such distribution~~ to ~~subscribe for or~~ purchase ~~shares of~~ Common ~~Stock~~ Shares (or securities convertible into or exchangeable or exercisable for Common ~~Stock),~~ Shares) at a price per share (or having a conversion, exchange or exercise price per share) less than the ~~average of the~~ Closing Sale ~~Prices~~ Price of Common Shares on the ~~Common Stock~~ Record Date for ~~the ten (10) consecutive Trading Day period ending on~~shareholders entitled to receive such rights and warrants, ~~and including, the Trading Day immediately preceding the announcement date~~ which rights or warrants are exercisable for ~~such distribution~~not more than 60 days, the Conversion Rate ~~will~~ shall be ~~calculated~~ adjusted based on the following ~~formula: CR = CR0 × OS0 + X OS0 + Y~~ 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 Close of Business on the Record Date for~~ such ~~distribution; CR~~ event CR' = the Conversion Rate in effect immediately after ~~the Close of Business on the Record Date for~~ such ~~distribution;~~ event OS0 = the number of ~~shares of~~ Common ~~Stock~~ Shares 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 ~~Stock~~ Shares issuable pursuant to such ~~rights, options or warrants; and~~ rights Y = the number of ~~shares of~~ Common ~~Stock~~ Shares equal to the quotient of (A) the aggregate price payable to exercise all such ~~rights, options~~ rights or warrants ~~divided by~~ and (B) the average of the Closing ~~Sale~~ Sales Prices of Common ~~Stock over~~ Shares for the ~~ten (10)~~ 10 consecutive Trading ~~Day period~~ Days ending ~~on, and including,~~ on the ~~Trading~~ Business Day immediately preceding the date of announcement ~~date~~ for the issuance of such ~~distribution. Any adjustment made under this Section 10.4(b) will be made successively whenever any such rights, options~~ rights or warrants ~~are issued and will~~ Such adjustment shall become effective immediately after the ~~Close~~ opening of ~~Business~~ business on the ~~Record Date for~~ day following the date of announcement of such ~~distribution~~issuance. To the extent that ~~shares of~~ Common ~~Stock~~ Shares (or securities convertible into or exchangeable or exercisable for Common Shares) are not delivered ~~after the expiration of~~ pursuant to such ~~rights, options~~ rights or warrants, ~~including because~~ upon the ~~distributed rights, options~~ expiration or ~~warrants were not exercised~~termination of such rights or warrants, the Conversion Rate ~~will~~ shall be ~~decreased~~ readjusted to the Conversion Rate ~~that~~ which would then be in effect had the ~~increase with respect to~~ adjustments made upon the ~~distribution~~ issuance of such ~~rights, options~~ rights or warrants been made on the basis of the delivery of only the number of ~~shares of~~ Common ~~Stock~~ Shares (or securities convertible into or exchangeable or exercisable for Common Shares) actually delivered. If In the event that such ~~rights, options~~ rights or warrants are not so ~~distributed~~issued, the Conversion Rate ~~will~~ shall again be ~~decreased~~ adjusted to be the Conversion Rate ~~that~~ which would then be in effect if the ~~Ex-Dividend Date~~ date fixed for the determination of stockholders entitled to receive such ~~distribution~~ rights or warrants had not ~~occurred~~been fixed. ~~For purposes of this Section 10.4(b), in~~ In determining whether any ~~rights, options~~ rights or warrants entitle the ~~Purchaser~~ holders to subscribe for or purchase ~~shares of~~ Common ~~Stock~~ Shares at ~~a price that is~~ less than ~~the average of the~~ such Closing Sale ~~Prices~~ Price, and in determining the aggregate offering price of ~~the~~ such Common ~~Stock over the applicable ten (10) consecutive Trading Day period~~Shares, there ~~will~~ shall be taken into account any consideration ~~the Company receives~~ received for such ~~rights, options~~ rights 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 ~~Company’s board~~ Board of ~~directors. (i) If an Ex-Dividend Date occurs for a distribution (a “Relevant Distribution”) of shares~~ Directors 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, evidences of its indebtedness or other assets or property of the Company to all or substantially all holders of the Common Stock (excluding (A) dividends or distributions and rights, options or warrants as to which an adjustment was effected under Sections 10.4(a) or 10.4(b); (B) dividends or distributions paid exclusively in cash covered under Section 10.4(d); and (C) Spin-Offs), then the Conversion Rate will be calculated based on the following formula: CR = CR0 × ▇▇▇ ▇▇▇ – 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 ten (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 Company’s 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 adjustment made under the above portion of this Section 10.4(c) will 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 will 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, the Purchaser will 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 Bond, 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 ~~10.4(c)(i) (and subject in all respects to Section 10.4(f~~11.04(b)~~): (1) Rights~~, ~~options~~ rights or warrants distributed by the Company to all ~~or substantially all~~ holders of ~~the~~ its Common ~~Stock~~ Shares entitling them to subscribe for or purchase shares of the Company~~’s capital stock, including Common~~ 's Capital Stock (either initially or under certain circumstances), which ~~rights, options~~ rights or warrants, until the occurrence of a specified event or events (~~a “~~"Trigger Event~~”):~~ "): (a1) are deemed to be transferred with such ~~shares of the~~ Common ~~Stock;~~ Shares; (b2) are not exercisable; ~~and~~ and (c3) are also issued in respect of future issuances of ~~the~~ Common ~~Stock~~Shares, ~~will~~ shall be deemed not to have been distributed for purposes of this Section ~~10.4(c~~11.04(b) (and no adjustment to the Conversion ~~Rate~~ Price under this Section ~~10.4(c) will~~ 11.04(b)will be required) until the occurrence of the earliest Trigger Event, whereupon such ~~rights, options or~~ rights and warrants ~~will~~ shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate ~~will~~ shall be made under this Section ~~10.4(c~~11.04(b)~~. (2)~~ . If any such ~~right, option~~ right or warrant, including any such existing ~~rights, options~~ rights or warrants distributed prior to the ~~Closing~~date of this Indenture, are subject to events, upon the occurrence of which such ~~rights, options~~ 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 ~~will~~ shall be deemed to be the date of distribution and ~~the Record Date~~ record date with respect to new ~~rights, options~~ rights or warrants with such rights (~~in which case~~ and a termination or expiration of the existing ~~rights, options~~ rights or warrants ~~will 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, options~~ rights or warrants, or any Trigger Event or other event (of the type described in the ~~immediately~~ preceding ~~clause (2~~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 ~~10.4(c~~11.04(b) was made: , (a1) in the case of any such ~~rights, options~~ rights or warrants ~~that will~~ which shall all have been redeemed or ~~repurchased~~ purchased without exercise by any ~~holders~~ Holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase ~~(x) the Conversion Rate will be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate will then again be readjusted~~ to give effect to such ~~distribution, deemed~~ distribution or Trigger Event, as the case may be, as though it were a cash ~~distribution pursuant to Section 10.4(d)~~distribution, equal to the per share redemption or ~~repurchase~~ purchase price received by a holder ~~or holders~~ of Common ~~Stock~~ Shares with respect to such ~~rights, options~~ rights or warrants (assuming such holder had retained such ~~rights, options~~ rights or warrants), made to all applicable holders of Common ~~Stock~~ Shares as of the date of such redemption or repurchase~~; and~~ , and (b2) in the case of such ~~rights, options~~ rights or warrants ~~that~~ which shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate ~~will~~ shall be readjusted as if such ~~rights, options~~ rights and warrants had not been issued. (4c) ~~For purposes~~ If the Company, at any time or from time to time while the Securities are outstanding, distributes to all or substantially all holders of ~~Sections 10.4(a)~~its Common Shares, ~~10.4(b) and 10.4(c)~~Common Shares of the Company, ~~if any dividend~~ evidences of its indebtedness or ~~distribution to which this Section 10.4(c) is applicable includes one or both of~~assets, including securities, but excluding: (ai) ~~a dividend~~ dividends or ~~distribution of shares of Common Stock~~ distributions referred to ~~which~~ in Section ~~10.4(a) is applicable (the “Clause A Distribution”~~11.04(a)~~; or~~; (bii) ~~an issuance of rights, options~~ rights or warrants referred to ~~which~~ in Section ~~10.4(b) is applicable (the “Clause B Distribution”~~11.04(b), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2iii) dividends or distributions referred to in Section 11.04(d); then the ~~Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any~~ Conversion Rate ~~adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then~~ shall be ~~made~~adjusted based on the following formula: where, ~~except that, if~~ 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 such Record Date for such distribution FMV = the fair market value (as determined by the ~~Company (A) the “Record Date”~~ Board of Directors of the ~~Clause A Distribution~~ Company and subject to the ~~Clause B Distribution will be deemed~~ approval of the Toronto Stock Exchange) of the Common Shares, evidences of indebtedness, assets or property distributed with respect to be each outstanding Common Share on the Record Date ~~of the Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding~~ for such distribution Such adjustment shall become effective immediately prior to the ~~Close~~ opening of ~~Business~~ business on the day following the Record Date ~~or immediately prior~~ for such distribution. If the Board of Directors of the Company determines the fair market value of any distribution for purposes of this Section 11.04(c) by reference to the ~~Open~~ 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 ~~Business on such effective date” within~~ the ~~meaning~~ Common Shares. To the extent that the Company has a rights plan in effect upon conversion of ~~Section 10.4(a) or “outstanding immediately prior~~ the Securities into Common Shares, a Holder shall receive, in addition to the ~~Close~~ Common Shares, the rights under the rights plan unless the rights have separated from the Common Shares at the time of ~~Business on~~ conversion, in which case the ~~Record Date” within~~ Conversion Rate will be adjusted as if the ~~meaning~~ Company distributed to all holders of ~~Section 10.4(b). (ii)~~ 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 ~~10.4(c~~11.04(c) where there has been ~~an Ex-Dividend Date for~~ a payment of a dividend or other distribution on the Common ~~Stock of~~ Shares or common shares ~~of capital stock~~ of any class or series, or similar equity interest, of or relating to a Subsidiary or other business ~~unit, that are, or, when issued, will be, listed or admitted for trading on a United States national securities exchange~~ unit (a “"Spin-Off”"), the Conversion Rate ~~will~~ 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 ~~calculated~~ 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 Record Date for the Spin-Off; CR~~ such distribution CR' = the Conversion Rate in effect immediately after the Close of Business on the Record Date for the Spin-Off; FMV = the 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 (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first ten (10) consecutive Trading Day period commencing on, and including, the effective date for the Spin-Off (such period, the “Valuation Period”); and MP0 distribution FMV0 = the average of the Closing Sale Prices of the Common ~~Stock~~ Shares or similar equity interest distributed to holders of Common Shares applicable to one common share over the ~~Valuation Period.~~ 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 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 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 ~~of this Section 10.4(c)~~ will ~~be determined~~ occur on the ~~last day of the Valuation Period but will be given effect immediately~~ fourteenth Trading Day after the ~~Close of Business~~ date on ~~the Record Date for the Spin~~which "Ex-Off. In respect of any conversion during the Valuation Period for any Spin-Off, references within this Section 10.4(c)(ii) related to ten (10) Trading Days will be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the effective date Dividend Trading" commences for such ~~Spin-Off to, but excluding,~~ distribution on The American Stock Exchange or such other national or regional exchange or market on which the ~~relevant Conversion Date~~Securities are then listed or quoted. (d) If ~~an Ex-Dividend Date occurs for a~~ any cash dividend or other distribution is made to all or substantially all holders of ~~the~~ Common ~~Stock (other than any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up)~~Shares, the Conversion Rate ~~will~~ shall be ~~recalculated~~ adjusted based on the following formula: ~~CR = CR0 × ▇▇▇ ▇▇▇ – C~~ where, CR0 = the Conversion Rate in effect ~~immediately prior to the Close of Business~~ on the Record Date for such ~~distribution; CR~~ distribution CR' = the Conversion Rate in effect immediately after the ~~Close~~ Record Date for such distribution SP0 = the Current Market Price of ~~Business~~ one of the Common Shares on the Record Date for such distribution; SP0 = the average of the Closing Sale Prices of the Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and distribution C = the amount in cash per share the Company distributes to holders of Common ~~Stock the Company pays, or distributes, to all or substantially all holders of the Common Stock~~Shares. ~~Any~~ Such adjustment ~~made under this Section 10.4(d) will~~ shall become effective immediately after ~~the Close of Business~~ 5:00 p.m., New York City time, on the Record Date for such dividend or distribution~~. No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However,~~ ; provided that if ~~any~~ such dividend or distribution ~~described in this Section 10.4(d)~~ is ~~declared but~~ not so paid or made, the Conversion Rate ~~will~~ shall again be ~~readjusted~~ adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared~~. Notwithstanding~~ . (e) If the ~~foregoing~~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, ~~if “C”~~ 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 ~~defined above~~determined by the Board of Directors) ~~is equal to or greater than “SP0” (as defined above), in lieu~~ of the ~~foregoing increase~~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 after 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 ~~Purchaser will receive~~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 11.04, ~~for each $1,000 principal amount of~~ the ~~Bond, at~~ following terms shall have the ~~sam~~meaning indicated:

Appears in 1 contract

Sources: Supplemental Indenture (Novagold Resources Inc)

Conversion Rate Adjustments. The Conversion Rate ~~will~~ shall be subject to ~~adjustments~~ adjustment from time to time, without duplication, upon the occurrence of any of the following events, provided, that the Company will not make any adjustments to the Conversion Rate if Holders of the Notes participate (other than in the case of (x) a share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as Holders of our Common Stock and solely as a result of holding the Notes, in any of the transactions described below without having to convert their Notes as if they held a number of shares of Common Stock equal to the Conversion Rate, multiplied by the principal amount of Notes held by such Holder, divided by $1,000: (a) If the Company ~~(i)~~ issues solely shares of Common Stock as a dividend or distribution on all or substantially all of its shares of Common Stock, ~~(ii)~~ or if the Company subdivides ~~Common Stock~~ or ~~(iii)~~ combines Common Stock, the Conversion Rate ~~will~~ shall be ~~calculated~~ adjusted based on the following formula: ~~CR = CR0 × OS OS0~~ where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ Open of Business on the ~~Record~~ Ex-Dividend 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; CR CR1 = the Conversion Rate in effect immediately after the ~~Close~~ Open of Business on the ~~Record~~ Ex-Dividend 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; OS0 = the number of shares of Common Stock outstanding immediately prior to the ~~Close~~ Open of Business on the ~~Record~~ Ex-Dividend Date for such dividend or ~~distribution,~~ 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 OS1 = 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 ~~10.4(a~~5.05(a) ~~will~~ 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 Ex-Dividend Date for such dividend or distribution or effective date of such subdivision or combination of Common Stock, as the case may be. If such dividend, distribution, subdivision or combination described in this Section ~~10.4(a~~5.05(a) is declared but not so paid or made, the Conversion Rate ~~will~~ shall be immediately readjusted, effective as of the date the ~~Company’s board~~ Board of ~~directors~~ Directors determines not to pay such dividend or distribution or to effect such subdivision or combination, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared or ~~such~~ subdivision or combination had not been announced. (b) If an Ex-Dividend Date occurs for a distribution to all or substantially all holders of Common Stock of any rights, options or warrants entitling such holders for a period of not more than ~~sixty (60)~~ 60 calendar days from the announcement date for such distribution to subscribe for or purchase shares of Common ~~Stock (or securities convertible into Common~~ Stock), at a price per share less than the average of the Closing Sale Prices of the Common Stock for the ~~ten (10)~~ 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution, the Conversion Rate ~~will~~ shall be ~~calculated~~ increased based on the following formula: ~~CR = CR0 × OS0 + X OS0 + Y~~ where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ Open of Business on the ~~Record~~ Ex-Dividend Date for such distribution; CR CR1 = the Conversion Rate in effect immediately after the ~~Close~~ Open of Business on the ~~Record~~ Ex-Dividend Date for such distribution; OS0 = the number of shares of Common Stock outstanding immediately prior to the ~~Close~~ Open of Business on the ~~Record~~ Ex-Dividend Date for such distribution; X = the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants divided by the average of the Closing Sale Prices of Common Stock over the ~~ten (10)~~ 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the announcement date for such distribution. Any adjustment made under this Section ~~10.4(b~~5.05(b) will become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution. Any increase made under this Section 5.05(b) shall be made successively whenever any such rights, options or warrants are issued and ~~will~~ shall become effective immediately after the ~~Close~~ Open of Business on the ~~Record~~ Ex-Dividend Date for such distribution. To the extent that shares of Common Stock are not delivered after the ~~expiration~~ exercise of such rights, options or warrants, ~~including because the distributed rights, options or warrants were not exercised,~~ the Conversion Rate ~~will~~ shall be ~~decreased~~ readjusted to the Conversion Rate that would then be in effect had the increase with respect to the ~~distribution~~ issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. If such rights, options or warrants are not so distributed, the Conversion Rate ~~will~~ shall be ~~decreased~~ readjusted to the Conversion Rate that would then be in effect if the ~~Ex-Dividend~~ Record Date for such distribution had not occurred. For purposes of this Section ~~10.4(b~~5.05(b), in determining whether any rights, options or warrants entitle the ~~Purchaser~~ Holders to subscribe for or purchase shares of Common Stock at a price that is less than the average of the Closing Sale Prices of the Common Stock over the applicable ~~ten (10)~~ 10 consecutive Trading Day ~~period~~period and in determining the aggregate price payable for such shares of the Common Stock, there ~~will~~ shall be taken into account any consideration the Company receives for such rights, options or warrants and any amount payable on exercise or conversion thereof, with the value of such consideration if other than cash to be determined in good faith by the ~~Company’s board~~ Board of ~~directors~~Directors. (iA) 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, ~~evidences of its indebtedness or other assets or property of the Company~~ to all or substantially all holders of the Common Stock (excluding (Ai) dividends or distributions and rights, options or warrants as to which an adjustment was effected under ~~Sections 10.4(a~~Section 5.05(a) or ~~10.4(b)~~Section 5.05(b) above; (Bii) dividends or distributions paid exclusively in cash covered under Section ~~10.4(d~~5.05(d); and (Ciii) Spin-Offs), then the Conversion Rate ~~will~~ shall be ~~calculated~~ increased based on the following formula: ~~CR = CR0 × ▇▇▇ ▇▇▇ – FMV~~ where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ Open of Business on the ~~Record~~ Ex-Dividend Date for such distribution; CR CR1 = the Conversion Rate in effect immediately after the ~~Close~~ Open of Business on the ~~Record~~ Ex-Dividend Date for such distribution; SP0 = the average of the Closing Sale Prices of the Common Stock over the ~~ten (10)~~ 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 ~~Company’s board~~ Board of ~~directors~~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 ~~adjustment~~ increase made under the above portion of this Section ~~10.4(c~~5.05(c) ~~will~~ shall become effective immediately after the ~~Close~~ Open of Business on the ~~Record~~ Ex-Dividend 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 ~~will~~ 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, ~~the Purchaser will receive~~each Holder of a Note shall receive (without having to convert its notes), in respect of each $1,000 ~~principal amount~~ Original Principal Amount thereof, at the same time and upon the same terms as holders of the Common Stock, ~~without having to convert its Bond,~~ the amount and ~~kind~~ type of the Relevant Distribution that such ~~holder~~ Holder would have received if such ~~holder~~ Holder owned a number of shares of Common Stock equal to the Conversion Rate on the Record Date for the distribution. For purposes of this Section 10.4(c)(i) (and subject in all respects to Section 10.4(f)): (1) Rights, options or warrants distributed by the Company to all or substantially all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s capital stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (a “Trigger Event”): (a) are deemed to be transferred with such shares of the Common Stock; (b) are not exercisable; and (c) are also issued in respect of future issuances of the Common Stock, will be deemed not to have been distributed for purposes of this Section 10.4(c) (and no adjustment to the Conversion Rate under this Section 10.4(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants will be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate will be made under this Section 10.4(c). (2) If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the Closing, are subject to events, upon the occurrence of which such 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 will be deemed to be the date of distribution and the Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants will 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, options or warrants, or any Trigger Event or other event of the type described in the immediately preceding clause (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 10.4(c) was made: (a) in the case of any such rights, options or warrants that will all have been redeemed or repurchased without exercise by any holders thereof, upon such final redemption or repurchase (x) the Conversion Rate will be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate will then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution pursuant to Section 10.4(d), equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase; and (b) in the case of such rights, options or warrants that have expired or been terminated without exercise by any holders thereof, the Conversion Rate will be readjusted as if such rights, options and warrants had not been issued. (4) For purposes of Sections 10.4(a), 10.4(b) and 10.4(c), if any dividend or distribution to which this Section 10.4(c) is applicable includes one or both of: (a) a dividend or distribution of shares of Common Stock to which Section 10.4(a) is applicable (the “Clause A Distribution”); or (b) an issuance of rights, options or warrants to which Section 10.4(b) is applicable (the “Clause B Distribution”), then: (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, will be deemed to be a dividend or distribution to which this Section 10.4(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.4(c) with respect to such Clause C Distribution will then be made; and (2) the Clause A Distribution and Clause B Distribution will be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Sections 10.4(a) and 10.4(b) with respect thereto will then be made, except that, if determined by the Company (A) the “Record Date” of the Clause A Distribution and the Clause B Distribution will be deemed to be the Record Date of the Clause C Distribution and (B) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution will be deemed not to be “outstanding immediately prior to the Close of Business on the Record Date or immediately prior to the Open of Business on such effective date” within the meaning of Section 10.4(a) or “outstanding immediately prior to the Close of Business on the Record Date” within the meaning of Section 10.4(b). (ii) With respect to an adjustment pursuant to this Section ~~10.4(c~~5.05(c) where there has been an Ex-Dividend Date for a dividend or other distribution on the Common Stock of shares of capital stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit, that are, or, when issued, will be, listed or admitted for trading on a ~~United States~~ U.S. national securities exchange (a “Spin-Off”), the Conversion Rate ~~will~~ shall be ~~calculated~~ increased based on the following formula: ~~CR = CR0 × FMV + MP0 MP0~~ where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ Open of Business on the ~~Record~~ Ex-Dividend Date for the Spin-Off; CR CR1 = the Conversion Rate in effect immediately after the ~~Close~~ Open of Business on the ~~Record~~ Ex-Dividend Date for the Spin-Off; FMV = the 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 (determined by reference to the definition of “Closing Sale Price” as if references therein to Common Stock were to such capital stock or similar equity interest) over the first ~~ten (10)~~ 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 Closing Sale Prices of the Common Stock over the Valuation Period. The adjustment to the Conversion Rate under the preceding paragraph of this Section ~~10.4(c~~5.05(c) ~~will~~ shall be determined on the last day of the Valuation Period but will be given effect immediately after the ~~Close~~ Open of Business on the ~~Record~~ Ex-Dividend Date for the Spin-Off. In respect of any conversion during the Valuation Period for any Spin-Off, references within this Section ~~10.4(c)(ii~~5.05(c)(B) related to ~~ten (10)~~ 10 Trading Days ~~will~~ 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 distribution to all or substantially all holders of the outstanding Common Stock (other than any dividend or distribution in connection with the Company’s liquidation, dissolution or winding up), the Conversion Rate ~~will~~ shall be ~~recalculated~~ increased based on the following formula: ~~CR = CR0 × ▇▇▇ ▇▇▇ – C~~ where, CR0 = the Conversion Rate in effect immediately prior to the ~~Close~~ Open of Business on the ~~Record~~ Ex-Dividend Date for such distribution; CR CR1 = the Conversion Rate in effect immediately after the ~~Close~~ Open of Business on the ~~Record~~ Ex-Dividend Date for such distribution; SP0 = the average of the Closing Sale Prices of the Common Stock over the ~~ten (10)~~ 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and C = the amount in cash per share of Common Stock the Company pays, or distributes, to all or substantially all holders of the Common Stock. Any ~~adjustment~~ increase made under this Section ~~10.4(d~~5.05(d) ~~will~~ shall become effective immediately after the ~~Close~~ Open of Business on the ~~Record~~ Ex-Dividend Date for such dividend or distribution. No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. However, if any dividend or distribution described in this Section ~~10.4(d~~5.05(d) is declared but not so paid or made, the Conversion Rate ~~will~~ 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 “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing increase, ~~the Purchaser will receive,~~ each Holder of a Note shall receive (without having to convert its Notes) for each $1,000 ~~principal amount~~ Original Principal Amount of ~~the Bond~~Notes, at the ~~sam~~same time and upon the same terms as holders of shares of Common Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of Common Stock equal to the Conversion Rate on the Record Date for such cash dividend or distribution. (e) If the Company or any of its Subsidiaries makes a payment in respect of a tender or exchange offer for the Common Stock and, if the cash and value of any other consideration included in the payment per share of Common Stock exceeds the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Date”), the Conversion Rate shall be increased based on the following formula: where, CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Trading Day next succeeding the Expiration Date; CR1 = the Conversion Rate in effect immediately after the Open of Business on the Trading Day next succeeding the Expiration Date; AC = the aggregate value of all cash and any other consideration (as determined in good faith by the Board of Directors) paid or payable for shares of Common Stock purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately prior to the time (the “Expiration Time”) such tender or exchange offer expires (prior to giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); OS1 = the number of shares of Common Stock outstanding immediately after the Expiration Time (after giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); and SP1 = the average of the Closing Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Expiration Date. The adjustment to the Conversion Rate under this Section 5.05(e) shall be determined at the Close of Business on the tenth Trading Day immediately following, but excluding, the Expiration Date but shall be given effect at the Open of Business on the Trading Day next succeeding the Expiration Date. In respect of any conversion during the 10 Trading Days commencing on the Trading Day next succeeding the Expiration Date, references within this Section 5.05(e) to 10 Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed from, and including, the Trading Day next succeeding the Expiration Date to, but excluding, the relevant Conversion Date. No adjustment pursuant to the above formula will result in a decrease of the Conversion Rate. (f) To the extent that the Company has a rights plan in effect upon conversion of the Notes, the Holders shall receive, in addition to the Common Stock received in connection with such conversion, the rights under the rights plan, unless prior to any conversion, the rights have separated from the Common Stock, in which case the Conversion Rate will be adjusted at the time of separation as if the Company distributed to all holders of Common Stock, shares of the Company’s capital stock, evidences of indebtedness or other assets or property as described in Section 5.05(c), subject to readjustment in the event of the expiration, termination or redemption of such rights. (g) To the extent permitted by applicable law and applicable listing rules of the Nasdaq Global Select Market and any other securities exchange on which the Company’s securities are then listed, (i) the Company is permitted to increase the Conversion Rate of the Notes by any amount for a period of at least 20 Business Days so long as the increase is irrevocable during the period and the Board of Directors determines that such increase would be in the Company’s best interest and (ii) the Company may (but is not required to) increase the Conversion Rate to avoid or diminish income tax to holders of the Common Stock or rights to purchase shares of the Common Stock in connection with a dividend or distribution of shares (or rights to acquire shares) or similar events. The Company must give at least 15 days’ prior no

Appears in 1 contract

Sources: Second Supplemental Indenture (Fluidigm Corp)

Common use of Conversion Rate Adjustments Clause in Contracts