Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of: (i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination), (ii) any consolidation, merger or combination involving the Company, (iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, or (iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII. (b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.07, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given to each Holder, at its address appearing on the Note Register provided for in the Indenture, within 30 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture. (c) None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 and Section 11.02 prior to the effective date of such Merger Event. (d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the CompanyCompany (or, after the effective time of the Tornier Merger Transaction and after giving effect to the requirements and other provisions described in this Section 14.07 as they relate to the Tornier Merger Transaction, Tornier),
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries (or, after the effective time of the Tornier Merger Transaction and after giving effect to the requirements and other provisions described in this Section 14.07 as they relate to the Tornier Merger Transaction, of Tornier and its Subsidiaries) substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Reorganization Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Reorganization Event, upon conversion of the right Notes the Settlement Amount shall continue to convert each $1,000 principal amount be paid in solely cash; provided, however, that the Daily VWAP from and after the effective time of Notes such Reorganization Event shall be changed into a right to convert such principal amount calculated based on the value of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number one share of shares of the Common Stock equal to the Conversion Rate immediately prior to such Merger Reorganization Event would have owned or been entitled to receive upon the occurrence of such Reorganization Event (such shares of stock, other securities or other property or assets (including cash or any combination thereof) the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event; provided), howeverexcept that, that at and after in the effective time case of the Tornier Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or deliveredTransaction, as the case may be, upon conversion of Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of the sum of (x) the amount of cash that a unit holder of Reference Propertyone share of Common Stock shall be entitled to receive in the Tornier Merger Transaction, if any, and (y) the number of Tornier Ordinary Shares that a holder of one share of Common Stock shall be entitled to receive in the Tornier Merger Transaction. If Prior to or at the effective time of such Reorganization Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(f) providing for such change in the right to convert each $1,000 principal amount of Notes. Notwithstanding the foregoing, in the case of the Permitted Tornier Merger Transaction, Tornier shall not be required to execute a supplemental indenture until 90 days after the effective date of the Permitted Tornier Merger Transaction. For purposes of the foregoing, if the Reorganization Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property used to determine the amount of cash into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of the Common Stock that affirmatively make such an election or election, except that, in the case of the Tornier Merger Transaction, the Reference Property will be based on the number of Tornier Ordinary Shares equal to the Conversion Rate, subject to adjustment as described in this Article 14 and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of the Common Stock. The Company will notify holders, except that, in the Trustee and the Conversion Agent (if other than the Trustee) in writing case of the weighted average as soon as practicable after Tornier Merger Transaction, such determination is madeunit of Reference Property shall refer to the consideration referred to in clause (i) attributable to one Tornier Ordinary Share. If the holders of Common Stock receive only cash in such Merger Reorganization Event, then for all conversions that occur after the effective date of such Merger Reorganization Event (Ax) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Cash Make-Whole Premium pursuant to Section 11.0314.03), multiplied by the price paid per share of the Common Stock in such Merger Reorganization Event and (By) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second third Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. For the avoidance of doubt, for purposes of the foregoing, the cash and number of Tornier Ordinary Shares that a holder of one share of Common Stock will be entitled to receive in the Tornier Merger Transaction will be determined without giving effect to any rounding down to the nearest Tornier Ordinary Share and excluding any cash paid for fractional Tornier Ordinary Shares as a result of any such rounding. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Reorganization Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Reorganization Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including including, to the extent reasonably considered necessary by the Board of Directors, the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Reorganization Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 14.07; provided, however, that for the purposes of this Section 14.07(c) it is agreed and understood that the terms of the Permitted Tornier Merger Transaction are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Reorganization Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Reorganization Events.
Appears in 1 contract
Samples: Indenture (Wright Medical Group Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the CompanyParent Guarantor,
(iii) any sale, lease or other transfer to a third party of substantially all of the consolidated assets of the Company Parent Guarantor and the CompanyParent Guarantor’s Subsidiaries substantially as an entiretyexisting and future Subsidiaries, or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Specified Corporate Event”), then the Company, Company or the successor or purchasing companyacquiring corporation, as the case may be, will shall execute with the Trustee and without the consent of the Holders, a supplemental indenture permitted under 10.01(c) providing that, at and after the effective time of such Merger Specified Corporate Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock Ciena Consideration Units equal to the Conversion Rate immediately prior to such Merger Specified Corporate Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock Ciena Consideration Unit is entitled to receive) upon the occurrence of such Merger Specified Corporate Event; provided, however, that at and after the effective time of the Merger Event Specified Corporate Event, (A) the Company or the successor or acquiring corporation, as the case may be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02, and in respect of the Interest Make-Whole Payment, if applicable, in accordance with Section 14.01(b) and (B) (Ix) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.01 and Section 14.02 shall continue to be payable in cash, (IIy) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.01 and Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Specified Corporate Event and (IIIz) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Specified Corporate Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder shareholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Specified Corporate Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Specified Corporate Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.04), multiplied by the price paid per share of Common Stock in such Merger Specified Corporate Event and (B) the Company shall satisfy the Conversion Obligation by paying such cash amount to converting Holders on the second third Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for (x) anti-dilution and other adjustments that shall be as nearly equivalent as is possible practicable to the adjustments provided for in this Article XISection 14.09, with respect to any Reference Property consisting of shares of Common Equity, and (y) with respect to any other Reference Property, such adjustments (if any) that the Board of Directors determines in good faith are appropriate. If, in the case of any Merger Specified Corporate Event, the Reference Property includes shares of stock, securities Common Equity or other property or assets (including cash or any combination thereof) of securities issued by a Person company that is party to such transaction but is not the Company, such other than the successor or purchasing corporationcompany will also execute such supplemental indenture, as the case may be, in such Merger Event, then and such supplemental indenture shall also be executed by such other Person and shall will contain such additional provisions and modifications as the Board of Directors reasonably considers necessary or appropriate to protect the interests of the Holders, including the right of Holders of to require the Notes as the Board of Directors or Company to purchase their notes upon a committee thereof shall reasonably consider necessary Fundamental Change by reason of the foregoing. If the Notes become convertible into Reference Property, including the provisions providing for Company shall notify the purchase rights set forth in Article XIIHolders, the Trustee and the Conversion Agent (if other than the Trustee) and publish the information on the Company’s website or through such other public medium as the Company may use at that time.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.09, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) Parent Guarantor shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.09. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into Ciena Consideration Units or, following receipt of Stockholder Approval, cash, shares of Common Stock Ciena Consideration Units or a combination of cash and shares of Common StockCiena Consideration Units, as applicable, all as set forth in Section 11.01 14.01 and Section 11.02 14.02, prior to the effective date of such Merger Specified Corporate Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Specified Corporate Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the amount otherwise payable in cash upon conversion of the Notes as set forth under Section 14.02 shall continue to be payable in cash, (B) the Company shall continue to have the right to elect to determine the form of consideration to be paid or delivered, as the case may be, upon conversion in respect of the remainder, if any, of the Conversion Obligation in excess of the principal amount of the Notes in accordance with being converted as set forth under Section 11.02 and 14.02, (BC) (I) any amount payable in cash the number of shares of Common Stock, if any, otherwise deliverable upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (IIID) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or election, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicableif any, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
(e) In connection with any adjustment to the Conversion Rate with respect to a Merger Event, the Dividend Threshold shall be adjusted based on the number of shares of common stock comprising the Reference Property and (if applicable) the value of any non-stock consideration comprising the Reference Property. If the Reference Property is composed solely of non-stock consideration, the Dividend Threshold at and after the effective time of such Merger Event will be equal to zero.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case event of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),;
(ii) any a consolidation, merger merger, combination, binding share exchange or combination similar transaction involving the Company,; or
(iii) any a sale, assignment, conveyance, transfer, lease or other transfer disposition to a third party another Person of the consolidated assets of the Company and the Company’s Subsidiaries property and assets as an entirety or substantially as an entirety, or
(iv) any statutory share exchange, in each case, as a result in which holders of which the outstanding Common Stock would be converted intoare entitled to receive cash, securities or exchanged for, stock, other securities, other property or assets for their shares of Common Stock (including cash or any combination thereof) (“Reference Property” and any such eventtransaction, a “Merger Share Exchange Event”), then the Company, Company or the successor or purchasing companycompany , as the case may be, will shall execute with the Trustee and without the consent of the Holders, a supplemental indenture permitted under Section 10.01(g), providing that, at and after the effective time of such Merger Share Exchange Event, the right to convert Holders of each $1,000 principal amount of Notes shall be changed into a right entitled to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Share Exchange Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive, a “unit of Reference Property”) upon such Merger Share Exchange Event; provided, however, that at and after the effective time of the Merger any such Share Exchange Event (A) the Company shall continue to have the right to determine the form of consideration Settlement Method applicable to be paid or delivered, as the case may be, upon any conversion of Notes in accordance with Section 11.02 and 14.02, unless the Company has previously made an irrevocable election pursuant to Section 14.02(a)(iii)(D), (B) (I) any amount otherwise payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cashcash in accordance with Section 14.02, (IIC) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Merger Share Exchange Event and (IIID) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Notes become convertible into Reference Property pursuant to this Section 14.07, the Company shall notify the Trustee and issue a press release containing the relevant information (and make the press release available on the Company’s website). Throughout this Article 14, if the Common Stock has been replaced by Reference Property in accordance with this Section 14.07 as a result of any Share Exchange Event, references to the Common Stock are intended to refer to such Reference Property, subject to the provisions of the supplemental indenture described in this paragraph. If the Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form because the holders of stockholder election)the Common Stock have the right to elect the type of consideration they will receive, then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Share Exchange Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Share Exchange Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Share Exchange Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second third Business Day immediately following the relevant Conversion DateDate and no Conversion Period shall apply to such conversions. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Share Exchange Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoingNotes, including the provisions providing for the purchase rights set forth in Article XII15, as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Share Exchange Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Share Exchange Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Share Exchange Events.
(e) In connection with any Share Exchange Event, the Dividend Threshold Amount shall be subject to adjustment as described in clause (i), clause (ii) or clause (iii) below, as the case may be.
(i) In the case of a Share Exchange Event in which the Reference Property (determined, as appropriate, pursuant to subsection (a) above and excluding any dissenters’ appraisal rights) is composed entirely of shares of common stock (the “Merger Common Stock”), the Dividend Threshold Amount at and after the effective time of such Share Exchange Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Merger Event, divided by (y) the number of shares of Merger Common Stock that a holder of one share of Common Stock would receive in such Share Exchange Event (such quotient rounded down to the nearest cent).
(ii) In the case of a Share Exchange Event in which the Reference Property (determined, as appropriate, pursuant to subsection (a) above and excluding any dissenters’ appraisal rights) is composed in part of shares of Merger Common Stock, the Dividend Threshold Amount at and after the effective time of such Share Exchange Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Merger Event, multiplied by (y) the Merger Valuation Percentage for such Merger Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a Share Exchange Event in which the Reference Property (determined, as appropriate, pursuant to subsection (a) above and excluding any dissenters’ appraisal rights) is composed entirely of consideration other than shares of common stock, the Dividend Threshold Amount at and after the effective time of such Share Exchange Event shall be equal to zero.
(f) Notwithstanding the foregoing, if a Share Exchange Event also constitutes a Public Acquirer Change of Control, and the Company validly elects to change the conversion right pursuant to, and in accordance with, Section 14.12, then the provisions of Section 14.12 shall apply in lieu of the provisions of this Section 14.07.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then then, at the Companyeffective time of such Merger Event, the Company or the successor or purchasing companyacquiring corporation, as the case may be, will shall execute with the Trustee and without the consent of the Holders, a supplemental indenture permitted under Section 10.01(g) providing that, that at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 and Section 11.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.execution
Appears in 1 contract
Samples: Indenture (Western Digital Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes any recapitalization, reclassification or change resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,Reference Entity, 104
(iii) any sale, lease or other transfer to a third party of all or substantially all of the consolidated assets of the Company Reference Entity and the CompanyReference Entity’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) ), other than any transaction that constitutes a Spin-Off, a Split-Off or a Share Election Merger (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert exchange each $1,000 principal amount of Notes shall be changed into a right to convert or exchange such principal amount of Notes into or for, respectively, the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Exchange Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, and the Reference Entity shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to exchange each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion or exchange of Notes in accordance with Section 11.02 Section 14.02 and (B) (I) any amount payable in cash upon conversion or exchange of the Notes in accordance with Section 11.02 Section 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion or exchange of the Notes in accordance with Section 11.02 Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. For the avoidance of doubt, as of the Supplemental Indenture Effective Date, (x) the Reference Property for all purposes hereunder shall be Common Stock and (y) the unit of Reference Property for all purposes hereunder shall be one share of Common Stock, in each case, subject to further modification pursuant to Section 11.05, Section 14.04 and this Section 14.07. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible convertible, or for which the Notes will be exchangeable, shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur exchanges for which the relevant Exchange Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion exchange of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Exchange Rate in effect on the Conversion Exchange Date (as may be increased by any Additional Shares pursuant to Section 11.03Section 14.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Exchange Obligation by paying cash to converting exchanging Holders on no later than the second Business Day immediately following the relevant Conversion Exchange Date. The Company shall notify Holders, the Trustee and the Exchange Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. 105 Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XIArticle 14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Reference Entity or the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Company’s Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase repurchase rights set forth in Article XIIArticle 15.
(b) In the event When the Company shall and the Reference Entity execute a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07(a), the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) Neither the Company nor the Reference Entity shall consummate any Merger Event unless the consummation of such Merger Event occurs in accordance with this Section 14.07. None of the foregoing provisions shall affect the right of a holder Holder of Notes to convert exchange its Notes into for cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 Section 14.01 and Section 11.02 Section 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section 14.07 shall similarly apply to successive Merger Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then then, the Company, Company or the successor or purchasing company, as the case may be, will execute with the Trustee and Trustee, without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event the Conversion Obligation shall be calculated and settlement in accordance with Section 14.02 such that (A) the amount otherwise payable in cash upon conversion of the Notes as set forth under Section 14.02 shall continue to be payable in cash, (B) the Company shall continue to have the right to elect to determine the form of consideration to be paid or delivered, as the case may be, upon conversion in respect of the remainder, if any, of the Conversion Obligation in excess of the principal amount of the Notes in accordance with being converted as set forth under Section 11.02 and 14.02, (BC) (I) any amount payable in cash the number of shares of Common Stock, if any, otherwise deliverable upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (IIID) the Daily VWAP shall be calculated based on the value of a unit of Reference PropertyProperty that a holder of one share of the Common Stock would have received in such Merger Event. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying such cash amount to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Company, the successor or the purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with and an Opinion of Counsel stating that all conditions precedent have been complied with, and shall promptly mail give notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 calendar days after execution thereof. Failure to deliver give such notice shall not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicableif any, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
(e) Upon the consummation of any Merger Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes capital stock after giving effect to such Merger Event.
(f) For purposes of this Section 14.07, “Company” shall be deemed to include any successor or purchasing Person, as the case may be.
Appears in 1 contract
Samples: Indenture (Palo Alto Networks Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combinationcombination or the automatic conversion of the Class B Common Stock into Common Stock pursuant to the terms of the Amended and Restated Certificate of Incorporation),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, or
entirety or (iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Share Exchange Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Share Exchange Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Share Exchange Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Share Exchange Event and, prior to or at the effective time of such Share Exchange Event, the Company or the successor or acquiring company, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Share Exchange Event (A) the Company or the successor or acquiring company, as the case may be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Share Exchange Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Share Exchange Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Share Exchange Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Share Exchange Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. If the Reference Property in respect of any such Share Exchange Event includes, in whole or in part, shares of Common Equity or American depositary receipts (or other interests) in respect thereof, such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14 with respect to the portion of the Reference Property consisting of such Common Equity or American depositary receipts (or other interests) in respect thereof. If, in the case of any Merger Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) ), other than cash and/or cash equivalents, of a Person other than the Company or the successor or purchasing corporationacquiring company, as the case may be, in such Merger Share Exchange Event, then such supplemental indenture shall also be executed by such other Person, if such Person is an Affiliate of the Company or the successor or acquiring company, and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof Company shall in good faith reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Share Exchange Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Share Exchange Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Share Exchange Events.
Appears in 1 contract
Samples: Indenture (Datadog, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(j) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, amount otherwise payable in cash upon conversion of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any the Company will continue to have the right to elect to determine the Cash Percentage in respect of the remainder, if any, of its Conversion Obligation in excess of the principal amount of Notes being converted in accordance with Section 14.02, (III) the number of shares of Common Stock that Stock, if any, otherwise deliverable by the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (IIIIV) the Daily VWAP and Last Reported Sale Price shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and proportionate amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be are as nearly equivalent as is possible to the adjustments provided for in this Article XI14 and will contain such additional provisions to protect the conversion rights of the Holders that the Company reasonably considers necessary. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Company or the successor or purchasing corporation (excluding, for the avoidance of doubt, cash paid by such surviving company, successor or purchasing corporation), as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall Company reasonably consider considers necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with deliver to the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, Stock (if any) as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
(e) Upon the consummation of any Merger Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes capital stock after giving effect to such Merger Event.
Appears in 1 contract
Samples: Indenture (Middleby Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, binding share exchange or combination involving the Company,, or
(iii) any sale, lease or other transfer conveyance to a third party another Person or entity of the consolidated assets all or substantially all of the Company and the Company’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchangeassets, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Share Exchange Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or securities, other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (assets, the “Reference Property,” with each “unit of Reference Property” meaning and the amount and kind and amount of Reference Property that a holder of one share of Common Stock is would be entitled to receivereceive on account of such Share Exchange Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property) upon such Merger Event; provideda “Reference Property Unit”), howeverthen, that at and after the effective time of the Merger Event such Share Exchange Event, (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, due upon conversion of Notes in accordance with Section 11.02 any Note, and (B) (I) the conditions to any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 such conversion, shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable determined in the amount and type of Reference Property that a holder of that same manner as if each reference to any number of shares of Common Stock would have received in such Merger Event and Article 13 (IIIor in any related definitions or provisions) were instead a reference to the same number of Reference Property Units; (B) the Daily VWAP shall be calculated based on the value of a unit Reference Property Unit; (C) for purposes of the definitions of “Fundamental Change” and “Make-Whole Fundamental Change,” the term “Common Stock” shall be deemed to mean Common Equity (or ADRs or other interests in respect of Common Equity), if any, forming part of such Reference Property; and (D) for purposes of Article 15, each reference to any number of shares of Common Stock in Article 15 (or in any related definitions) will instead be deemed to be a reference to the same number of Reference PropertyProperty Units. In addition, prior to or at the effective time of such Share Exchange Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(c) providing that the Notes will be convertible as described in this Section 13.07. If the Merger Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the composition of the Reference Property into which the Notes will be convertible Unit shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one share all holders of Common Stock. The Company will shall notify holdersHolders and, in writing, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such composition of the weighted average Reference Property Unit as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Share Exchange Event, then for all conversions that occur for which the relevant Conversion Date occurs on or after the effective date of such Merger Share Exchange Event (Ai) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0313.03), multiplied by the price paid per share of Common Stock in such Merger Share Exchange Event and (Bii) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on or before the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture providing that the Notes will be convertible as described in the second immediately preceding paragraph shall shall, to the extent applicable, also provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI13. If, in the case of any Merger Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Share Exchange Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof Company shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII14.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0713.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property Unit after any such Merger Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Share Exchange Event unless its terms are consistent with this Section 13.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 13.01 and Section 11.02 13.02 prior to the effective date of such Merger Share Exchange Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Share Exchange Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Specified Corporate Event”), then the Company, Company or the successor or purchasing companyacquiring corporation, as the case may be, will shall execute with the Trustee and without the consent of the Holders, a supplemental indenture permitted under Section 10.01(j) providing that, at and after the effective time of such Merger Specified Corporate Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Specified Corporate Event would have owned or been entitled to receive (without giving effect to any dissenters’ rights) (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon the occurrence of such Merger Specified Corporate Event; provided, however, that at and after the effective time of the Merger Event Specified Corporate Event, (A) the Company or the successor or acquiring corporation, as the case may be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02, if the Company has received Stockholder Approval prior to the relevant Stockholder Approval Deadline and (B) (Ix) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (IIy) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Specified Corporate Event and (IIIz) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Specified Corporate Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder shareholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Specified Corporate Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Specified Corporate Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Specified Corporate Event and (B) the Company shall satisfy the Conversion Obligation by paying such cash amount to converting Holders on the second third Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for (x) anti-dilution and other adjustments that shall be as nearly equivalent as is possible practicable to the adjustments provided for in this Article XI14, with respect to any Reference Property consisting of shares of Common Equity, and (y) with respect to any other Reference Property, such adjustments (if any) that the Board of Directors determines in good faith are appropriate. If, in the case of any Merger Specified Corporate Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Specified Corporate Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase repurchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into shares of Common Stock or, following receipt of Stockholder Approval, cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, all as set forth in Section 11.01 14.01 and Section 11.02 14.02, prior to the effective date of such Merger Specified Corporate Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Specified Corporate Events.
Appears in 1 contract
Samples: Indenture (Enernoc Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes in par value or from or to no par value or resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such an event, a “Merger Common Stock Change Event,” and such stock, other securities, other property or assets, the “Reference Property,” and the amount and kind of Reference Property that a holder of one share of Common Stock would be entitled to receive on account of such Common Stock Change Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property), a “Reference Property Unit”), then then, at and after the Companyeffective time of such Common Stock Change Event, (1) the consideration due upon exchange of any Note, and the conditions to any such exchange, will be determined in the same manner as if each reference to any number of shares of Common Stock in Article IX (or in any related definitions) were instead a reference to the same number of Reference Property Units; (2) for purposes of the definition of “Fundamental Change” and “Make-Whole Fundamental Change,” the term “Common Stock” will be deemed to mean the Common Equity, if any, forming part of such Reference Property; (3) for purposes of the definition of “Record Date,” the term “Common Stock” will be deemed to refer to any class of equity securities forming part of such Reference Property; and (4) the Daily VWAP will be calculated based on the value of a Reference Property Unit. Prior to or at the effective time of such Common Stock Change Event, the Company or the successor or purchasing companyPerson, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture permitted under Section 6.01(k) providing that, at and after for the effective time aforementioned change in the exchange right of the Notes. If such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Change Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes Unit will be convertible shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one share holders of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent Stock pursuant to such Common Stock Change Event (if excluding any amounts received pursuant to dissenters’ rights or pursuant to any arrangement not to issue or deliver a fractional portion of any security or other than the Trustee) in writing of the weighted average as soon as practicable after such determination is madeproperty). If the holders of the Common Stock receive only cash in such Merger Common Stock Change Event, then for all conversions exchanges that occur after the effective date of such Merger Event Common Stock Change Event, (Ax) the consideration due upon conversion exchange of each $1,000 principal amount of Notes shall will be solely cash in an amount equal to the Conversion Exchange Rate in effect on the Conversion Exchange Date (as may be increased by any Additional Shares pursuant to Section 11.039.03), multiplied by the price paid per share of Common Stock in such Merger Common Stock Change Event and (By) the Company shall will satisfy the Conversion Exchange Obligation by paying cash to converting exchanging Holders on the second Business Day immediately following the relevant Conversion Exchange Date. The Company will notify Holders, the Trustee and the Exchange Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding first paragraph shall of this subsection (a) will provide for anti-dilution and other adjustments that shall will be as nearly equivalent as is possible to the adjustments provided for in this Article XIIX. If, in the case of any Merger Common Stock Change Event, the Reference Property Unit includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Common Stock Change Event, then such supplemental indenture shall will also be executed by such other Person and shall will contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider considers necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII.X.
(b) In the event the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.079.07, the Company shall will promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of the Reference Property Unit after any such Merger Common Stock Change Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall will promptly mail send notice thereof to all Holders. The Company shall will cause notice of the execution of such supplemental indenture to be given sent to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall will not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of The Company will not become a holder of Notes party to convert its Notes into cash, shares of any Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Change Event unless its terms are consistent with this Section 11.01 and Section 11.02 prior to the effective date of such Merger Event9.07.
(d) The above provisions of this Section shall will similarly apply to successive Merger Common Stock Change Events.
Appears in 1 contract
Samples: First Supplemental Indenture (Encore Capital Group Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, or
entirety or (iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then then, the Company, Company or the successor Successor Company or purchasing company, as the case may be, will execute with the Trustee and Trustee, without the consent of the Holders, a supplemental indenture providing that, that at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(f) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second third Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
(e) Upon the consummation of any Merger Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes capital stock after giving effect to such Merger Event.
Appears in 1 contract
Samples: Indenture (Homeaway Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value or no par value, or changes resulting from a subdivision or combinationcombination or the automatic conversion of the Class B Common Stock into Common Stock pursuant to the terms of the Company’s amended and restated certificate of incorporation),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets and properties of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(f) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. If the Reference Property in respect of any such Merger Event includes, in whole or in part, Common Equity, such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be are as nearly equivalent as is possible to the adjustments provided for in this Article XI14 with respect to the portion of the Reference Property consisting of such Common Equity. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including other than cash or any combination thereofand/or cash equivalents) of a Person other than the Company or the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person (if such other Person is an Affiliate of the Company or the successor or purchasing corporation, as the case may be) and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall Company in good faith reasonably consider considers necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
(e) Upon the consummation of any Merger Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes Common Equity after giving effect to such Merger Event.
Appears in 1 contract
Samples: Indenture (Pure Storage, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combinationcombination or change in par value),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third third-party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, or
entirety or (iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (without giving effect to statutory dissenters’ appraisal rights) (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event; provided, howeverand the Company or purchasing Person, that as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(i) providing for such change in the right to convert each $1,000 principal amount of Notes. For the avoidance of doubt, at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form number of consideration to be paid or delivered, as the case may be, upon conversion shares of Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash Common Stock otherwise deliverable upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference PropertyEvent. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will shall notify holdersHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as practicable after such determination is made. If the holders Reference Property in respect of any such transaction includes shares of Common Stock receive only cash in Equity, such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including other than cash or any combination thereofand/or cash equivalents) of a Person other than the Company or the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person (if an Affiliate of the Company or the successor or purchasing corporation, as the case may be), and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof Company shall reasonably consider necessary by reason or appropriate consistent with the applicable provisions of the foregoing, including the provisions providing for the purchase rights set forth in Article XIIthis Indenture.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail give notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given to each Holder, at its address appearing on the Note Register provided for in the IndentureHolders, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Samples: Indenture (Xenoport Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes in par value or from or to no par value or resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such an event, a “Merger Common Stock Change Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee ,” and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or securities, other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (assets, the “Reference Property,” with each “unit of Reference Property” meaning and the amount and kind and amount of Reference Property that a holder of one share of Common Stock is would be entitled to receive) upon receive on account of such Merger Event; providedCommon Stock Change Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property), howevera “Reference Property Unit”), that then, at and after the effective time of the Merger Event such Common Stock Change Event, (A1) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, due upon conversion of Notes in accordance with Section 11.02 any Note, and (B) (I) the conditions to any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to such conversion, will be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable determined in the amount and type of Reference Property that a holder of that same manner as if each reference to any number of shares of Common Stock would have received in Article XIII (or in any related definitions) were instead a reference to the same number of Reference Property Units; (2) for purposes of the definition of “Fundamental Change” and “Make-Whole Fundamental Change,” the terms “Common Stock” and “Common Equity” will be deemed to mean the Common Equity, if any, forming part of such Reference Property; (3) for purposes of the definition of “Record Date,” the term “Common Stock” will be deemed to refer to any class of equity securities forming part of such Reference Property; (4) for purposes of Section 14.07, each reference to any number of shares of Common Stock in such Merger Event Section 14.07 (or in any related definitions) will instead be deemed to be a reference to the same number of Reference Property Units and (III5) the Daily VWAP shall will be calculated based on the value of a unit Reference Property Unit. Prior to or at the effective time of Reference Propertysuch Common Stock Change Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(k) providing for the aforementioned change in the conversion right of the Notes. If the Merger such Common Stock Change Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible Unit shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one share holders of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent Stock pursuant to such Common Stock Change Event (if excluding any amounts received pursuant to dissenters’ rights or pursuant to any arrangement not to issue or deliver a fractional portion of any security or other than the Trustee) in writing of the weighted average as soon as practicable after such determination is madeproperty). If the holders of the Common Stock receive only cash in such Merger Common Stock Change Event, then for all conversions that occur after the effective date of such Merger Event Common Stock Change Event, (Ax) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0313.03), multiplied by the price paid per share of Common Stock in such Merger Common Stock Change Event and (By) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding first paragraph of this subsection (a) shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XIXIII. If, in the case of any Merger Common Stock Change Event, the Reference Property Unit includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Common Stock Change Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XIIXIV.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.0713.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of the Reference Property Unit after any such Merger Common Stock Change Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given sent to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of The Company will not become a holder of Notes party to convert its Notes into cash, shares of any Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Change Event unless its terms are consistent with this Section 11.01 and Section 11.02 prior to the effective date of such Merger Event13.07.
(d) The above provisions of this Section shall similarly apply to successive Merger Common Stock Change Events.
Appears in 1 contract
Samples: Indenture (Encore Capital Group Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination)) after the Issue Date,
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third third-party of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then then, to the Company, extent the Notes are not redeemed or the successor or purchasing company, as the case may be, will execute repurchased in accordance with the Trustee and without the consent of the Holders, a supplemental indenture providing thatArticle 10 in connection with such Merger Event, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute an amendment to this Agreement and an amendment to the Exchange Agreement permitted under Section 11.03 providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form number of consideration to be paid or delivered, as the case may be, upon conversion shares of Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash Common Stock otherwise deliverable upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 9.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) Event. For the Daily VWAP shall avoidance of doubt, the Company Spin-Off will not be calculated based on the value of considered a unit of Reference PropertyMerger Event. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will shall notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing Holders of the such weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash Such amendment to this Agreement entered into in connection with any Merger Event shall provide that, following such Merger Event, then for all conversions references to the Common Stock set forth in Section 9.04 shall be replaced with references to any common equity securities included in the Reference Property, except that occur after the effective date relevant adjustment shall be applied to the number of such common equity securities included in one unit of Reference Property rather than to the Conversion Rate. In addition, if the Reference Property includes common equity securities of any Person other than the Company, references to the Company (or similar references) in the definition of “Company Fundamental Change” shall be deemed to be replaced with references to such other Person. The Company may also make such other technical changes to the terms of the Notes that the Company reasonably determines to be necessary or advisable on account of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03)Event. In addition, multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI. If, in the case of at least 20 Scheduled Trading Days before any Merger Event, the Reference Property includes shares Company shall give notice to Holders of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then or, if the Company has not publicly announced such supplemental indenture Merger Event at such time, as promptly as practicable after publicly announcing such Merger Event. In any such notice, the Company shall also be executed by such other Person and shall contain such additional provisions to protect specify the interests composition of the unit of Reference Property for such Merger Event, or, if the Company has not determined the composition of such unit of Reference Property at such time, the Company will provide an additional written notice to Holders that states the composition of the Notes such unit of Reference Property as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XIIpromptly as practicable after determining its composition.
(b) In the event When the Company shall execute a supplemental indenture executes an amendment to this Agreement pursuant to subsection (a) of this Section 11.079.07, the Company shall promptly file with mail or transmit to the Trustee an Officers’ Certificate Holders a notice briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture amendment to this Agreement to be given mailed or transmitted to each Holder, at its address appearing on the Note Register provided for in the Indenturethis Agreement, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indentureamendment to this Agreement.
(c) None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 9.01 and Section 11.02 9.02 prior to the effective date of such Merger Event.
(d) Upon the occurrence of a Merger Event where the result is that the Company is no longer a Subsidiary of the Parent, a Holder’s right to exchange its Note into Parent Common Stock pursuant to the Exchange Agreement will terminate automatically.
(e) The above provisions of this Section 9.07 shall similarly apply to successive Merger Events.
Appears in 1 contract
Samples: Convertible Senior Note Purchase Agreement (Seacor Holdings Inc /New/)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change only in par value, from par value to no par value or from no par value to par value, or changes resulting from a subdivision or combinationcombination of the Common Stock),
(ii) any consolidation, consolidation or merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries substantially Subsidiaries, taken as an entirety, a whole; or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, or represent solely the right to receive, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or securities, other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (assets, the “Reference Property,” with each “unit of Reference Property” meaning and the amount and kind and amount of Reference Property that a holder of one share of Common Stock is would be entitled to receivereceive on account of such transaction, a “Reference Property Unit”) upon (and any such Merger recapitalization, reclassification, change, consolidation, merger, sale, lease, transfer or exchange, a “Share Exchange Event”), then the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture (which will be permitted under Section 801(f), Section 801(f) or Section 801(g)) providing that, at and after the effective time of such Share Exchange Event, the right to convert a Note into cash and/or shares of Common Stock shall be changed into the right to convert such Note into cash and/or Reference Property Units; provided, however, that at and after the effective time of the Merger Share Exchange Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 1002 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 1002 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 1002 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event Units and (III) the Daily VWAP shall be calculated based on the value of a unit Reference Property Unit. For these purposes, the Daily VWAP or Last Reported Sale Price of any Reference PropertyProperty Unit or portion thereof that does not consist of a class of securities will be the fair value of such Reference Property Unit or portion thereof, as applicable, determined in good faith by the Company (or, in the case of cash denominated in U.S. dollars, the face amount thereof). If the Merger Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then the composition of the Reference Property Unit will be deemed to be (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average average, per share of Common Stock, of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one received, per share of Common Stock. The Company will notify holders, by the Trustee and the Conversion Agent (if other than the Trustee) in writing holders of the weighted average as soon as practicable after such determination is madeCommon Stock. If the holders of Common Stock receive only cash in such Merger Share Exchange Event, then for all conversions of Notes that occur after the effective date of such Merger Event Share Exchange Event, (Ai) the consideration due upon conversion of each $1,000 principal amount of Notes shall shall, for the avoidance of doubt, be solely cash in an amount equal to the Conversion Rate in effect on the applicable Conversion Date (as as, for the avoidance of doubt, may be increased pursuant to Section 11.031003), multiplied by the price paid per share of Common Stock in such Merger Share Exchange Event and (Bii) the Company shall satisfy the its Conversion Obligation Obligations by paying cash to converting Holders on the second third Business Day immediately following the relevant applicable Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of the composition of the Reference Property Unit as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XITen. If, in the case of any Merger Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Company or the successor or purchasing corporation, as the case may be, in such Merger Share Exchange Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XIIEleven.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.071006, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or and amount of cash, securities or property or asset that will comprise a unit of Reference Property constituting the Reference Property after any such Merger the relevant Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given sent to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 twenty (20) calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Share Exchange Event unless its terms are consistent with this Section 1006. None of the foregoing provisions shall affect the right of a holder of Notes Holder to convert its Notes into cash, shares of Common Stock (or other Reference Property) or a combination of cash and shares of Common StockStock (or other Reference Property), as applicable, as set forth in Section 11.01 1001 and Section 11.02 1002 prior to the effective date of such Merger Share Exchange Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Share Exchange Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 13.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 13.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 13.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.0313.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second third Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XIXIII. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XIIXIV.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.0713.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 13.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 13.01 and Section 11.02 13.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Samples: Indenture (Infinera Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, binding share exchange or combination involving the Company,, or
(iii) any sale, lease or other transfer conveyance to a third party another Person or entity of the consolidated assets all or substantially all of the Company and the Company’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchangeassets, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Share Exchange Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or securities, other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (assets, the “Reference Property,” with each “unit of Reference Property” meaning and the amount and kind and amount of Reference Property that a holder of one share of Common Stock is would be entitled to receivereceive on account of such Share Exchange Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property) upon such Merger Event; provideda “Reference Property Unit”), howeverthen, that at and after the effective time of the Merger Event such Share Exchange Event, (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, due upon conversion of Notes in accordance with Section 11.02 any Note, and (B) (I) the conditions to any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 such conversion, shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable determined in the amount and type of Reference Property that a holder of that same manner as if each reference to any number of shares of Common Stock would have received in such Merger Event and Article 14 (IIIor in any related definitions or provisions) were instead a reference to the same number of Reference Property Units; (B) the Daily VWAP shall be calculated based on the value of a unit Reference Property Unit; and (C) for purposes of the definitions of “Fundamental Change” and “Make-Whole Fundamental Change,” the term “Common Stock” shall be deemed to mean Common Equity (or ADRs or other interests in respect of Common Equity), if any, forming part of such Reference Property. In addition, prior to or at the effective time of such Share Exchange Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(c) providing that the Notes will be convertible as described in this Section 14.07. If the Merger Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the composition of the Reference Property into which the Notes will be convertible Unit shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one share all holders of Common Stock. The Company will shall notify holdersHolders and, in writing, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such composition of the weighted average Reference Property Unit as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Share Exchange Event, then for all conversions that occur for which the relevant Conversion Date occurs on or after the effective date of such Merger Share Exchange Event (Ai) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.03Section 14.03), multiplied by the price paid per share of Common Stock in such Merger Share Exchange Event and (Bii) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture providing that the Notes will be convertible as described in the second immediately preceding paragraph shall shall, to the extent applicable, also provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XIArticle 14. If, in the case of any Merger Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Share Exchange Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XIIArticle 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a(a) of this Section 11.07Section 14.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property Unit after any such Merger Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Share Exchange Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 Section 14.01 and Section 11.02 Section 14.02 prior to the effective date of such Merger Share Exchange Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Share Exchange Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination, a change in the par value of the Common Stock or Class B Common Stock or the automatic conversion of the Class B Common Stock into Common Stock pursuant to the terms of the Company’s Restated Articles of Incorporation),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries substantially Subsidiaries, taken as an entirety, a whole or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Specified Corporate Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Specified Corporate Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Specified Corporate Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Specified Corporate Event and, prior to or at the effective time of such Specified Corporate Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee, without the consent of the Holders, a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Specified Corporate Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 Section 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 Section 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Merger Specified Corporate Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Specified Corporate Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder shareholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Specified Corporate Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Specified Corporate Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.03Section 14.03), multiplied by the price paid per share of Common Stock in such Merger Specified Corporate Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XIArticle 14. If, in the case of any Merger Specified Corporate Event, the Reference Property includes shares of stock, other securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporationPerson, as the case may be, in such Merger Specified Corporate Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XIIArticle 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a(a) of this Section 11.07Section 14.07, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 Section 14.01 and Section 11.02 Section 14.02 prior to the effective date of such Merger Specified Corporate Event.
(d) The above provisions of this Section 14.07 shall similarly apply to successive Merger Specified Corporate Events. For the avoidance of doubt, the conversion of any or all of the Class B Common Stock into Common Stock in one or more transactions pursuant to the Company’s Restated Articles of Incorporation will not constitute a Specified Corporate Event.
Appears in 1 contract
Samples: Indenture (Marcus Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, binding share exchange or combination involving the Company,, or
(iii) any sale, lease or other transfer conveyance to a third party another Person or entity of the consolidated assets all or substantially all of the Company and the Company’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchangeassets, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Share Exchange Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or securities, other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (assets, the “Reference Property,” with each “unit of Reference Property” meaning and the amount and kind and amount of Reference Property that a holder of one share of Common Stock is would be entitled to receivereceive on account of such Share Exchange Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property) upon such Merger Event; provideda “Reference Property Unit”), howeverthen, that at and after the effective time of the Merger Event such Share Exchange Event, (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, due upon conversion of Notes in accordance with Section 11.02 any Note, and (B) (I) the conditions to any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 such conversion, shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable determined in the amount and type of Reference Property that a holder of that same manner as if each reference to any number of shares of Common Stock would have received in such Merger Event and Article 13 (IIIor in any related definitions or provisions) were instead a reference to the same number of Reference Property Units; (B) the Daily VWAP shall be calculated based on the value of a unit Reference Property Unit; (C) for purposes of the definitions of “Fundamental Change” and “Make-Whole Fundamental Change,” the term “Common Stock” shall be deemed to mean Common Equity (or ADRs or other interests in respect of Common Equity), if any, forming part of such Reference Property; and (D) for purposes of Article 15, each reference to any number of shares of Common Stock in Article 15 (or in any related definitions) will instead be deemed to be a reference to the same number of Reference PropertyProperty Units. In addition, prior to or at the effective time of such Share Exchange Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(c) providing that the Notes will be convertible as described in this Section 13.07. If the Merger Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the composition of the Reference Property into which the Notes will be convertible Unit shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one share all holders of Common Stock. The Company will shall notify holdersHolders and, in writing, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such composition of the weighted average Reference Property Unit as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Share Exchange Event, then for all conversions that occur for which the relevant Conversion Date occurs on or after the effective date of such Merger Share Exchange Event (Ai) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0313.03), multiplied by the price paid per share of Common Stock in such Merger Share Exchange Event and (Bii) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on or before the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture providing that the Notes will be convertible as described in the second immediately preceding paragraph shall shall, to the extent applicable, also provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI13 (including giving effect, in the reasonable discretion of the Company, to the Dividend Threshold in a manner that is reasonably designed to preserve the economic interests of the Holders). If, in the case of any Merger Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Company or the successor or purchasing corporationentity, as the case may be, in such Merger Share Exchange Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof Company shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII14.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0713.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property Unit after any such Merger Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given sent to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Share Exchange Event unless its terms are consistent with this Section 13.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and and, if applicable, shares of Common Stock, as applicable, as set forth in Section 11.01 13.01 and Section 11.02 13.02, prior to the effective date of such Merger Share Exchange Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Share Exchange Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given to each Holder, at its address appearing on the Note Register provided for in the Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 11.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 and Section 11.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, binding share exchange or combination involving the Company,, or
(iii) any sale, lease or other transfer conveyance to a third party another Person or entity of the consolidated assets all or substantially all of the Company and the Company’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchangeassets, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Share Exchange Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or securities, other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (assets, the “Reference Property,” with each “unit of Reference Property” meaning and the amount and kind and amount of Reference Property that a holder of one share of Common Stock is would be entitled to receivereceive on account of such Share Exchange Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property) upon such Merger Event; provideda “Reference Property Unit”), howeverthen, that at and after the effective time of the Merger Event such Share Exchange Event, (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, due upon conversion of Notes in accordance with Section 11.02 any Note, and (B) (I) the conditions to any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 such conversion, shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable determined in the amount and type of Reference Property that a holder of that same manner as if each reference to any number of shares of Common Stock would have received in such Merger Event and Article 13 (IIIor in any related definitions or provisions) were instead a reference to the same number of Reference Property Units; (B) the Daily VWAP shall be calculated based on the value of a unit Reference Property Unit; (C) for purposes of the definitions of “Fundamental Change” and “Make-Whole Fundamental Change,” the term “Common Stock” shall be deemed to mean Common Equity (or ADRs or other interests in respect of Common Equity), if any, forming part of such Reference Property; and (D) for purposes of Article 15, each reference to any number of shares of Common Stock in Article 15 (or in any related definitions) will instead be deemed to be a reference to the same number of Reference PropertyProperty Units. In addition, prior to or at the effective time of such Share Exchange Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(c) providing that the Notes will be convertible as described in this Section 13.07. If the Merger Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the composition of the Reference Property into which the Notes will be convertible Unit shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one share all holders of Common Stock. The Company will shall notify holdersHolders and, in writing, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such composition of the weighted average Reference Property Unit as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Share Exchange Event, then for all conversions that occur for which the relevant Conversion Date occurs on or after the effective date of such Merger Share Exchange Event (Ai) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0313.03), multiplied by the #92449509v11 price paid per share of Common Stock in such Merger Share Exchange Event and (Bii) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on or before the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture providing that the Notes will be convertible as described in the second immediately preceding paragraph shall shall, to the extent applicable, also provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI13. If, in the case of any Merger Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Share Exchange Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof Company shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII14.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0713.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property Unit after any such Merger Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Share Exchange Event unless its terms are consistent with this Section 13.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 13.01 and Section 11.02 13.02 prior to the effective date of such Merger Share Exchange Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Share Exchange Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”)) then, then at the Companyeffective time of the Merger Event, the Company or the successor or purchasing companyacquiring person, as the case may be, will shall execute with the Trustee and a supplemental indenture, without the consent of the Holders, a supplemental indenture providing that, that at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination 77 thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event; provided, however, that at and after the effective time of the Merger Event (A) the Company or the successor or acquiring company, as the case may be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion in respect of the remainder, if any, of the Conversion Obligation in excess of the principal amount of the Notes being converted, in accordance with Section 11.02 and 14.02, (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (IIC) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (IIID) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as reasonably practicable after such determination is made. The supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14 with respect to the portion of Reference Property consisting of such Common Equity or securities convertible into or exchangeable for shares of Common Equity. If, in the case of any Merger Event, If the Reference Property in respect of any such Merger Event includes shares of stock, securities or other property or assets (including cash or any combination thereof) assets, of a Person other than the Company or the successor or purchasing corporation, as the case may be, in such Merger Event, then such other company shall also execute such supplemental indenture, and such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Company’s Board of Directors or a committee thereof shall reasonably consider considers necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are reasonably consistent with this Section 14.07 and in compliance with Section 14.10. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Samples: Indenture (Jetblue Airways Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Guarantors and the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company or the successor or purchasing Person, as the case may be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14, including adjustments to the Initial Dividend Threshold based on the number of shares of Common Stock comprising the Reference Property and (if applicable) the value of any non-stock consideration comprising the Reference Property. If the Reference Property is comprised solely of non-stock consideration, the Initial Dividend Threshold shall be zero. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
(e) Upon the consummation of any Merger Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes Common Equity after giving effect to such Merger Event.
Appears in 1 contract
Samples: Indenture (Fortive Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes in par value or changes resulting from a subdivision or combination),;
(ii) any consolidation, merger or other combination involving the Company,; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries substantially its Subsidiaries, taken as an entirety, a whole; or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property”, and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing companycorporation, as the case may be, will shall execute with the Trustee and Trustee, without the consent of the HoldersHolders in accordance with Section 10.01(h), a supplemental indenture providing that, at and after the effective time of such Merger the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Merger Specified Corporate Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Specified Corporate Event; provided, however, that at and after the effective time of the Merger Event Specified Corporate Event:
(A) the amount otherwise payable in cash upon conversion of the Notes as set forth under Section 14.02(a) shall continue to be payable in cash
(B) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion in respect of the remainder, if any, of the Conversion Obligation in excess of the principal amount of the Notes in accordance with being converted as set forth under Section 11.02 and 14.02(a);
(BC) (I) any amount payable in cash the number of shares of Common Stock, if any, otherwise deliverable upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II14.02(a) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and Specified Corporate Event; and
(IIID) the Daily VWAP shall be calculated based on the value of a unit Unit of Reference PropertyProperty that a holder of one share of Common Stock would have received in such Specified Corporate Event; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate Event (x) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Event and (y) the Company shall satisfy the Conversion Obligation by paying cash to the converting Holder on the second Business Day immediately following the relevant Conversion Date. If the Merger Specified Corporate Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one share holder of Common Stock. The Company will shall notify holdersHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, If the Reference Property in respect of any Specified Corporate Event includes shares of stock, other securities or other property or assets (including cash or any combination thereof) of a Person company other than the Company or the successor or purchasing corporation, as the case may be, in such Merger Specified Corporate Event, then such other company shall also execute such supplemental indenture, and such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders, including the right of Holders of to require the Company to repurchase their Notes in connection with a Fundamental Change in accordance with Article 15, as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07(a), the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset other assets (including any combination thereof) that will comprise a unit of the Reference Property after any such Merger Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given sent to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee and issue a press release containing the relevant information and publish the information on its website or through such other public medium as it may use at that time.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth receive the consideration due upon conversion in accordance with Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Specified Corporate Event.
(de) The above provisions of this Section shall similarly apply to successive Merger Specified Corporate Events.
Appears in 1 contract
Samples: Indenture (On Semiconductor Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such an event, a “Merger Common Stock Change Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee ,” and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities securities, other property, assets or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (cash, the “Reference Property,” with each “unit of Reference Property” meaning and the amount and kind and amount of Reference Property that a holder of one share of Common Stock is would be entitled to receive) upon receive on account of such Merger Event; providedCommon Stock Change Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property), howevera “Reference Property Unit”), that then, at and after the effective time of the Merger Event transaction:
(Ai) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, due upon conversion of Notes in accordance with Section 11.02 any Note, and (B) (I) the conditions to any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to such conversion, will be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable determined in the amount and type of Reference Property that a holder of that same manner as if each reference to any number of shares of Common Stock would have received in the provisions described in Section 14.02 (or in any related definitions) were instead a reference to the same number of Reference Property Units,
(ii) for purposes of the redemption provisions described in Article 16, each reference to any number of shares of the Common Stock in such Merger Event provisions (or in any related definitions) will instead be deemed to be a reference to the same number of Reference Property Units;
(iii) for the purposes of the definitions of “Fundamental Change” and “Make-Whole Fundamental Change”, the terms “common stock” and “common equity” will be deemed to mean the common equity (IIIincluding, except to the extent otherwise specified in such definitions, depositary receipts representing common equity), if any, forming part of such Reference Property; and
(iv) for these purposes, (1) the Daily VWAP shall of any Reference Property Unit or portion thereof that consists of a class of common equity securities will be calculated based on determined by reference to the definition of “Daily VWAP”, substituting, if applicable, the Bloomberg page for such class of securities in such definition; and (2) the Daily VWAP of any Reference Property Unit or portion thereof that does not consist of a class of common equity securities, and the Last Reported Sale Price of any Reference Property Unit or portion thereof that does not consist of a class of securities, will be the fair value of a unit such Reference Property Unit or portion thereof, as applicable, determined in good faith by the Company (or, in the case of Reference Propertycash denominated in U.S. dollars, the face amount thereof). If the Merger Common Stock Change Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the composition of the Reference Property into which the Notes Unit will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received per share of Common Stock by the holders of Common Stock. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as reasonably practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Common Stock Change Event, then for all conversions that occur for which the relevant Conversion Date occurs on or after the effective date of such Merger Event Common Stock Change Event, (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of the Common Stock in such Merger Event transaction and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second tenth Business Day immediately following the relevant Conversion Date. Such If the Reference Property in respect of any Common Stock Change Event includes, in whole or in part, common equity, the supplemental indenture described in providing that the second immediately preceding paragraph Notes will convertible into Reference Property (other than cash) shall also provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14 with respect to the portion of Reference Property constituting such common equity. If, in the case of any Merger Common Stock Change Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) ), other than cash and/or cash equivalents, of a Person other than the Company or the successor or purchasing corporation, as the case may be, in such Merger Common Stock Change Event, then such supplemental indenture shall also be executed by such other Person, if such Person is an Affiliate of the Company or the successor or purchasing corporation, and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof Company shall in good faith reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Common Stock Change Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Common Stock Change Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Common Stock Change Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Common Stock Change Events.
Appears in 1 contract
Samples: Indenture (Model N, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In Subject to Section 9.13, in the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination)) after the Issue Date,
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third third-party of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then then, to the Companyextent the New Convertible Notes are not redeemed or repurchased in accordance with Article X or converted pursuant to Section 9.13, or the successor or purchasing company, as the case may be, will execute in connection with the Trustee and without the consent of the Holders, a supplemental indenture providing thatsuch Merger Event, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of New Convertible Notes shall be changed into a right to convert such principal amount of New Convertible Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute an amendment to this Agreement providing for such change in the right to convert each $1,000 principal amount of New Convertible Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form number of consideration to be paid or delivered, as the case may be, shares of Common Stock otherwise deliverable upon conversion of the New Convertible Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 9.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference PropertyEvent. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the New Convertible Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will shall notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing Holders of the such weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash Such amendment to this Agreement entered into in connection with any Merger Event shall provide that, following such Merger Event, then for all conversions references to the Common Stock set forth in Section 9.04 shall be replaced with references to any common equity securities included in the Reference Property, except that occur after the effective date relevant adjustment shall be applied to the number of such common equity securities included in one unit of Reference Property rather than to the Conversion Rate. In addition, if the Reference Property includes common equity securities of any Person other than the Company, references to the Company (or similar references) in the definition of “Company Fundamental Change” shall be deemed to be replaced with references to such other Person. The Company may also make such other technical changes to the terms of the New Convertible Notes that the Company reasonably determines to be necessary or advisable on account of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03)Event. In addition, multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI. If, in the case of at least 20 Scheduled Trading Days before any Merger Event, the Reference Property includes shares Company shall give notice to Holders of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then or, if the Company has not publicly announced such supplemental indenture Merger Event at such time, as promptly as practicable after publicly announcing such Merger Event. In any such notice, the Company shall also be executed by such other Person and shall contain such additional provisions to protect specify the interests composition of the unit of Reference Property for such Merger Event, or, if the Company has not determined the composition of such unit of Reference Property at such time, the Company will provide an additional written notice to Holders that states the composition of the Notes such unit of Reference Property as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XIIpromptly as practicable after determining its composition.
(b) In the event When the Company shall execute a supplemental indenture executes an amendment to this Agreement pursuant to subsection (a) of this Section 11.079.07, the Company shall promptly file with mail or transmit to the Trustee an Officers’ Certificate Holders a notice briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture amendment to this Agreement to be given mailed or transmitted to each Holder, at its address appearing on the Note Register provided for in the Indenturethis Agreement, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indentureamendment to this Agreement.
(c) None of the foregoing provisions shall affect the right of a holder of New Convertible Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 9.01 and Section 11.02 9.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section 9.07 shall similarly apply to successive Merger Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combinationcombination or change in par value),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Share Exchange Event”), then the Company, Company or the successor or purchasing companyacquiring corporation, as the case may be, will shall execute with the Trustee and without the consent of the Holders, a supplemental indenture permitted under Section 10.01(i) providing that, at and after the effective time of such Merger Share Exchange Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Share Exchange Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Share Exchange Event and, prior to or at the effective time of such Share Exchange Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(f) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Share Exchange Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 13.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 13.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 13.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Merger Share Exchange Event and (III) the Daily VWAP and the Last Reported Sale Price, to the extent possible, shall be calculated based on the value of a unit of Reference Property. If the Merger Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Share Exchange Event, then for all conversions that occur after the effective date of such Merger Share Exchange Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0313.04), multiplied by the price paid per share of Common Stock in such Merger Share Exchange Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second third Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XIXIII. If, in the case of any Merger Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Share Exchange Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XIIXIV.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.0713.08, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given sent to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Share Exchange Event unless its terms are consistent with this Section 13.08. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 13.01 and Section 11.02 13.02 prior to the effective date of such Merger Share Exchange Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Share Exchange Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes a change to par value, or from par value to no par value, or a change resulting from a subdivision or combinationcombination for which an adjustment is made pursuant to Section 14.04(a),);
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,;
(iii) any sale, lease or other transfer to a third party of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, on a consolidated basis; or
(iv) any statutory share exchange, ; in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will shall notify holdersHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second third Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then then, the Company, Company or the successor or purchasing company, as the case may be, will execute with the Trustee and Trustee, without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event the Conversion Obligation shall be calculated and settlement in accordance with Section 14.02 such that (A) the amount otherwise payable in cash upon conversion of the Notes as set forth under Section 14.02 shall continue to be payable in cash, (B) the Company shall continue to have the right to elect to determine the form of consideration to be paid or delivered, as the case may be, upon conversion in respect of the remainder, if any, of the Conversion Obligation in excess of the principal amount of the Notes in accordance with being converted as set forth under Section 11.02 and 14.02, (BC) (I) any amount payable in cash the number of shares of Common Stock, if any, otherwise deliverable upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (IIID) the Daily VWAP shall be calculated based on the value of a unit of Reference PropertyProperty that a holder of one share of the Common Stock would have received in such Merger Event. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second third Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Company, the successor or the purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with and an Opinion of Counsel stating that all conditions precedent have been complied with, and shall promptly mail give notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 calendar days after execution thereof. Failure to deliver give such notice shall not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicableif any, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
(e) Upon the consummation of any Merger Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes capital stock after giving effect to such Merger Event.
(f) For purposes of this Section 14.07, “Company” shall be deemed to include any successor or purchasing Person, as the case may be.
Appears in 1 contract
Samples: Indenture (Palo Alto Networks Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes in par value or changes resulting from a subdivision or combination),;
(ii) any consolidation, merger or other combination involving the Company,; or
(iii) any sale, lease or other transfer or disposition to a third party of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries substantially its Subsidiaries, taken as an entirety, a whole; or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Specified Corporate Event” and any such stock, other securities, other property or assets (including cash or any combination thereof), “Reference Property”, and the amount of Reference Property that a holder of one share of the Common Stock immediately prior to such Specified Corporate Event would have been entitled to receive upon the occurrence of such Specified Corporate Event, a “Unit of Reference Property”), then the Company, or the successor or purchasing companycorporation, as the case may be, will shall execute with the Trustee and Trustee, without the consent of the HoldersHolders in accordance with Section 10.01(h), a supplemental indenture providing that, at and after the effective time of such Merger the Specified Corporate Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) Reference Property that a holder of a number of shares of the Common Stock equal to the Conversion Rate immediately prior to such Merger Specified Corporate Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Specified Corporate Event; provided, however, that at and after the effective time of the Merger Event Specified Corporate Event:
(A) the amount otherwise payable in cash upon conversion of the Notes as set forth under Section 14.02(a) shall continue to be payable in cash;
(B) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion in respect of the remainder, if any, of the Conversion Obligation in excess of the principal amount of the Notes in accordance with being converted as set forth under Section 11.02 and 14.02(a);
(BC) (I) any amount payable in cash the number of shares of Common Stock, if any, otherwise deliverable upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II14.02(a) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and Specified Corporate Event; and
(IIID) the Daily VWAP shall be calculated based on the value of a unit Unit of Reference PropertyProperty that a holder of one share of Common Stock would have received in such Specified Corporate Event; provided, however, that if the holders of Common Stock receive only cash in such Specified Corporate Event, then for all conversions that occur after the effective date of such Specified Corporate Event (x) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 14.03), multiplied by the price paid per share of Common Stock in such Specified Corporate Event and (y) the Company shall satisfy the Conversion Obligation by paying cash to the converting Holder on the second Business Day immediately following the relevant Conversion Date. If the Merger Specified Corporate Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one share holder of Common Stock. The Company will shall notify holdersHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, If the Reference Property in respect of any Specified Corporate Event includes shares of stock, other securities or other property or assets (including cash or any combination thereof) of a Person company other than the Company or the successor or purchasing corporation, as the case may be, in such Merger Specified Corporate Event, then such other company shall also execute such supplemental indenture, and such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders, including the right of Holders of to require the Company to repurchase their Notes in connection with a Fundamental Change in accordance with Article 15, as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07(a), the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset other assets (including any combination thereof) that will comprise a unit of the Reference Property after any such Merger Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail send notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given sent to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) If the Notes become convertible into Reference Property, the Company shall notify the Trustee and issue a press release containing the relevant information and publish the information on its website or through such other public medium as it may use at that time.
(d) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth receive the consideration due upon conversion in accordance with Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Specified Corporate Event.
(de) The above provisions of this Section shall similarly apply to successive Merger Specified Corporate Events.
Appears in 1 contract
Samples: Indenture (On Semiconductor Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, or represent solely the right to receive, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then then, notwithstanding anything to the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatcontrary herein, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible or that will be used to calculate the Daily VWAP, as the case may be, shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will shall notify holdersHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second third Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Company or the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
(e) Upon the consummation of any Merger Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes capital stock after giving effect to such Merger Event.
Appears in 1 contract
Samples: Indenture (CalAmp Corp.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification reclassification, or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, or combination involving the Company,
(iii) any sale, lease lease, or other transfer to a third party of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries substantially Subsidiaries, taken as an entiretya whole, or
(iv) any statutory share exchange, in each case, as a result of which holders of the Common Stock would be entitled to receive or their Common Stock would be converted into, or exchanged for, shares, stock, other securities, or other property or assets (including cash or any combination thereof) (any such event, a “Merger Common Stock Change Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Common Stock Change Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of shares, stock, other securities securities, or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Common Stock Change Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Common Stock Change Event and, prior to or at the effective time of such Common Stock Change Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(f) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Common Stock Change Event (A) the Company shall continue to have the right to determine the form of consideration elect physical settlement, cash settlement, or combination settlement with respect to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 13.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 13.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 13.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and Common Stock Change Event, (III) the Daily VWAP shall be calculated based on the value of a unit kind and amount of Reference PropertyProperty and (IV) the conditions to conversion described in Section 13.01(b)(ii) and 13.01(b)(iv) will be determined as if each reference to a share of Common Stock were instead a reference to a Reference Property unit. If the Merger Common Stock Change Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Common Stock Change Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Common Stock Change Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0313.03), multiplied by the cash price paid per share of Common Stock in such Merger Common Stock Change Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second third Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee, and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI13. If, in the case of any Merger Common Stock Change Event, the Reference Property includes shares of stock, securities securities, or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Common Stock Change Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0713.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Common Stock Change Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register as provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of a holder Holder of Notes to convert its Notes into cash, shares of Common Stock Stock, or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 13.01 and Section 11.02 13.02 prior to the effective date of such Merger Common Stock Change Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Common Stock Change Events.
(e) Upon the consummation of any Common Stock Change Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes capital stock after giving effect to such Common Stock Change Event.
Appears in 1 contract
Samples: Indenture (Square, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combinationcombination or the automatic conversion of the Class B Common Stock into Common Stock pursuant to the terms of the Amended and Restated Certificate of Incorporation),;
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,;
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, ; or
(iv) any statutory share exchange, ; in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Share Exchange Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Share Exchange Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Share Exchange Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Share Exchange Event and, prior to or at the effective time of such Share Exchange Event, the Company or the successor or acquiring Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Share Exchange Event (A) the Company or the successor or acquiring Person, as the case may be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Share Exchange Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference PropertyProperty that a holder of one share of Common Stock would have received in such Share Exchange Event. If the Merger Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Share Exchange Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Share Exchange Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Share Exchange Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second fifth Business Day immediately following the relevant Conversion Date. Such The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. If the Reference Property in respect of any such Share Exchange Event includes, in whole or in part, shares of Common Equity or American depositary receipts (or other interests) in respect thereof, such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14 with respect to the portion of the Reference Property consisting of such Common Equity or American depositary receipts (or other interests) in respect thereof. If, in the case of any Merger Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) ), other than cash and/or cash equivalents, of a Person other than the Company or the successor or purchasing corporationacquiring Person, as the case may be, in such Merger Share Exchange Event, then such supplemental indenture shall also be executed by such other Person, if such Person is an Affiliate of the Company or the successor or acquiring Person, and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof Company shall in good faith reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Share Exchange Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder Holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Share Exchange Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Share Exchange Events.
Appears in 1 contract
Samples: Indenture (Datadog, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon in such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(f) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event Event, the Conversion Obligation shall be calculated and settled in accordance with Section 14.02 such that (A) the Company amount otherwise payable in cash upon conversion of the Notes as set forth under Section 14.02 shall continue to have the right to determine the form of consideration to be paid or deliveredpayable in cash, as the case may be, upon conversion of Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash the number of shares of Common Stock otherwise deliverable upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Merger Event and (IIIC) the Daily VWAP shall be calculated based on the value of a unit of Reference PropertyProperty (as determined by the Board of Directors). If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or election, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (Ax) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (By) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second third Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including to the extent required by the Board of Directors and practicable the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of the Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicableif any, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Samples: Indenture (Electronic Arts Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes in par value or changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, other stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event” and such other stock, securities, property, assets or cash, the “Reference Property,” and the amount and kind of Reference Property that a holder of one share of Common Stock would be entitled to receive on account of such Merger Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property), a “Reference Property Unit”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, (i) the right consideration due upon conversion of any Note, and the conditions to convert any such conversion, will be determined in the same manner as if each $1,000 principal amount of Notes shall be changed into a right reference to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal in this Article 14 (or in any related definitions) were instead a reference to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount same number of Reference Property that a holder Units; (ii) for purposes of one share of Common Stock is entitled Article 16, each reference to receive) upon such Merger Event; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event provisions (or in any related definitions) will instead be deemed to be a reference to the same number of Reference Property Units; (iii) for purposes of the definitions of “Fundamental Change” and “Make-Whole Fundamental Change,” references to the Company’s “Common Stock” and “Common Equity” will be deemed to refer to the Common Equity (including depositary receipts representing Common Equity), if any, forming part of such Reference Property; and (IIIiv) the Last Reported Sales Price and Daily VWAP shall will be calculated based on the value of a unit of Reference PropertyProperty Unit. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property Unit for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average referred to in the second immediately preceding sentence as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including other than cash or any combination thereofcash equivalents) of a Person other than the Company or the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property Unit after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) (c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
(e) Upon the consummation of any Merger Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes capital stock after giving effect to such Merger Event.
Appears in 1 contract
Samples: Indenture (Five9, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Share Exchange Event”), then the Company, Company or the successor or purchasing companyPerson, as the case may be, will shall execute with the Trustee and without the consent of the Holders, Holders a supplemental indenture providing that, at and after the effective time of such Merger Share Exchange Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Share Exchange Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Share Exchange Event, and, prior to or at the effective time of such Share Exchange Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(i) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Share Exchange Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 Section 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 Section 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Merger Share Exchange Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Share Exchange Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Share Exchange Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.03Section 14.03), multiplied by the price paid per share of Common Stock in such Merger Share Exchange Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XIArticle 14. If, in the case of any Merger Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Share Exchange Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XIIArticle 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a(a) of this Section 11.07Section 14.07, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 Section 14.01 and Section 11.02 Section 14.02 prior to the effective date of such Merger Share Exchange Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Share Exchange Events.
Appears in 1 contract
Samples: Indenture (Zynga Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, case as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(f) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form number of consideration to be paid or delivered, as the case may be, shares of Common Stock otherwise deliverable upon conversion of Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 13.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference PropertyEvent. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or election, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will shall notify holdersHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI13. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including to the extent required by the Board of Directors and practicable the provisions providing for the purchase rights set forth in Article XII14.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.0713.07(a), the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefortherefore, the kind or amount of cash, securities or property or asset that will comprise a unit of the Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 13.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 13.01 and Section 11.02 13.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Samples: Indenture (Avis Budget Group, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries substantially Subsidiaries, taken as an entiretya whole, or
(iv) any statutory share exchange, in each case, as a result of which holders of the Common Stock would be entitled to receive or their Common Stock would be converted into, or exchanged for, shares, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Common Stock Change Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Common Stock Change Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares, shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Common Stock Change Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Common Stock Change Event and, prior to or at the effective time of such Common Stock Change Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(f) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Common Stock Change Event (A) the Company shall continue to have the right to determine the form of consideration elect physical settlement, cash settlement or combination settlement with respect to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 13.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 13.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 13.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and Common Stock Change Event, (III) the Daily VWAP shall be calculated based on the value of a unit kind and amount of Reference PropertyProperty and (IV) the conditions to conversion described in Section 13.01(b)(ii) and 13.01(b)(iv) will be determined as if each reference to a share of Common Stock were instead a reference to a Reference Property unit. If the Merger Common Stock Change Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Common Stock Change Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Common Stock Change Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0313.03), multiplied by the cash price paid per share of Common Stock in such Merger Common Stock Change Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second third Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI13. If, in the case of any Merger Common Stock Change Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Common Stock Change Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0713.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Common Stock Change Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register as provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of a holder Holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 13.01 and Section 11.02 13.02 prior to the effective date of such Merger Common Stock Change Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Common Stock Change Events.
(e) Upon the consummation of any Common Stock Change Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes capital stock after giving effect to such Common Stock Change Event.
Appears in 1 contract
Samples: Indenture (Square, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third third-party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(f) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form number of consideration to be paid or delivered, as the case may be, upon conversion shares of Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash Common Stock otherwise deliverable upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 13.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference PropertyEvent. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will shall notify holdersHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI13. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII14. The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 13.07.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0713.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail or transmit notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed or transmitted to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 13.01 and Section 11.02 13.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
(e) Upon the consummation of any Merger Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes capital stock after giving effect to such Merger Event.
(f) For purposes of this Section 13.07, “Company” shall be deemed to include any successor or purchasing Person, as the case may be.
Appears in 1 contract
Samples: Indenture (Clovis Oncology, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then then, the Company, Company or the successor or purchasing company, as the case may be, will execute with the Trustee and Trustee, without the consent of the Holders, a supplemental indenture providing that, that at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company or the successor or purchasing Person, as the case may be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying such cash amount to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as reasonably practicable after such determination is made. If the Reference Property in respect of any Merger Event includes, in whole or in part, shares of common equity other Capital Stock that may be converted into or exchanged for common equity, such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14 with respect to the portion of Reference Property consisting of such common equity or other Capital Stock. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including other than cash or any combination thereofcash equivalents) of a Person other than the Company or the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person (if such Person is an Affiliate of the Company or the successor or purchasing corporation) and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with and an Opinion of Counsel stating that all conditions precedent have been complied with, and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
(e) Upon the consummation of any Merger Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes capital stock after giving effect to such Merger Event.
Appears in 1 contract
Samples: Indenture (Medallia, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the Company or the Successor Entity, as the case may be, will enter into a supplemental indenture with the Trustee, without the consent of the Holders, providing that the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company or the successor or purchasing Person, as the case may be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. If the Reference Property in respect of any such Merger Event includes, in whole or in part, shares of Common Equity or American depositary receipts (or other interests) in respect thereof, such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14 with respect to the portion of the Reference Property consisting of such Common Equity or American depositary receipts (or other interests) in respect thereof. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) ), other than cash and/or cash equivalents, of a Person other than the Company or the successor or purchasing corporationentity, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person, if such Person is an Affiliate of the Company or the successor or purchasing entity, and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof Company shall in good faith reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder Holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, or
entirety or (iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Share Exchange Event”), then the Company, Company or the successor or purchasing companyPerson, as the case may be, will shall execute with the Trustee and without the consent of the Holders, Holders a supplemental indenture providing that, at and after the effective time of such Merger Share Exchange Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Share Exchange Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Share Exchange Event, and, prior to or at the effective time of such Share Exchange Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(i) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Share Exchange Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Merger Share Exchange Event and (III) the Daily VWAP shall be calculated based on the value or Last Reported Sale Price of a any unit of Reference PropertyProperty or portion thereof that does not consist of a class of securities shall be the fair value of such unit of Reference Property or portion thereof, as applicable, determined in good faith and in a commercially reasonable manner by the Company (or, in the case of cash denominated in U.S. dollars, the face amount thereof). If the Merger Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Share Exchange Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Share Exchange Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Share Exchange Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Share Exchange Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Share Exchange Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Share Exchange Events.
Appears in 1 contract
Samples: Indenture (Blackline, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change only in par value, from par value to no par value or from no par value to par value, or changes resulting from a subdivision or combinationcombination of the Common Stock),
(ii) any consolidation, consolidation or merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries substantially Subsidiaries, taken as an entirety, a whole; or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, or represent solely the right to receive, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or securities, other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (assets, the “Reference Property,” with each “unit of Reference Property” meaning and the amount and kind and amount of Reference Property that a holder of one share of Common Stock is would be entitled to receivereceive on account of such transaction (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property), a “Reference Property Unit”) upon (and any such Merger recapitalization, reclassification, change, consolidation, merger, sale, lease, transfer or exchange, a “Common Stock Change Event; provided”), howeverthen, that notwithstanding anything to the contrary in the Indenture or the Notes, at and after the effective time of the Merger Event such Common Stock Change Event, (Ax) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, due upon conversion of any Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to will be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable determined in the amount and type of Reference Property that a holder of that same manner as if each reference to any number of shares of Common Stock would have received in herein were instead a reference to the same number of Reference Property Units; (y) for purposes of the definitions of “Record Date” and “Ex-Dividend Date,” the term “Common Stock” will be deemed to refer to any class of securities forming part of such Merger Event Reference Property; and (IIIz) for purposes of the definition of “Fundamental Change” and “Make-Whole Fundamental Change,” the terms “Common Stock” and “Common Equity” will be deemed to mean the Common Equity, if any, forming part of such Reference Property. For these purposes, the Daily VWAP shall or Last Reported Sale Price of any Reference Property Unit or portion thereof that does not consist of a class of securities will be calculated based on the fair value of a unit such Reference Property Unit or portion thereof, as applicable, determined in good faith by the Company (or, in the case of Reference Propertycash denominated in U.S. dollars, the face amount thereof). If the Merger Common Stock Change Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the composition of the Reference Property into which the Notes Unit will be convertible shall be deemed to be the weighted average of the types and amounts of consideration received actually received, per share of Common Stock, by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Common Stock Change Event, then for all conversions of Notes that occur after the effective date of such Merger Event Common Stock Change Event, (Ai) the consideration due upon conversion of each $1,000 principal amount of Notes shall shall, for the avoidance of doubt, be solely cash in an amount equal to the Conversion Rate in effect on the applicable Conversion Date (as as, for the avoidance of doubt, may be increased pursuant to Section 11.0312.03), multiplied by the price paid per share of Common Stock in such Merger Common Stock Change Event and (Bii) the Company shall satisfy the its Conversion Obligation Obligations by paying cash to converting Holders on the second Business Day immediately following the relevant applicable Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph The Company shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI. If, in the case of any Merger Eventnotify Holders, the Reference Property includes shares of stock, securities or other property or assets Trustee and the Conversion Agent (including cash or any combination thereof) of a Person if other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests Trustee) of the Holders of the Notes weighted average as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XIIsoon as practicable after such determination is made.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.0712.06, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or and amount of cash, securities or property or asset that will comprise a unit of Reference Property constituting the Reference Property after any such Merger the relevant Common Stock Change Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given sent to each Holder, at its address appearing on the Note Register provided for in the Indenture, within 30 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Common Stock Change Event unless its terms are consistent with this Section 12.06. None of the foregoing provisions shall affect the right of a holder of Notes Holder to convert its Notes into cash, shares of Common Stock (or other Reference Property) or a combination of cash and shares of Common StockStock (or other Reference Property), as applicable, as set forth in Section 11.01 12.01 and Section 11.02 12.02 prior to the effective date of such Merger Common Stock Change Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Common Stock Change Events.
Appears in 1 contract
Samples: Third Supplemental Indenture (Apollo Commercial Real Estate Finance, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third third-party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(j) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form number of consideration to be paid or delivered, as the case may be, upon conversion shares of Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash Common Stock otherwise deliverable upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference PropertyEvent. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will shall notify holdersHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register Holder as provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Samples: Indenture (Enphase Energy, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which holders of the Common Stock would be converted into, or exchanged for, entitled to receive stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(j) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company or the successor or purchasing Person, as the case may be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 13.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 13.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 13.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0313.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second fifth Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for the Investor Note, and anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI13. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof Company in good faith shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0713.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, with and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register as provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 13.07. None of the foregoing provisions shall affect the right of a holder Holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 13.01 and Section 11.02 13.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
(e) Upon the consummation of any Merger Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes capital stock after giving effect to such Merger Event.
Appears in 1 contract
Samples: Indenture (Unity Software Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes in par value or from no par value or resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such an event, a “Merger Common Stock Change Event”, and such stock, other securities, other property, assets or cash, the “Reference Property”, and the amount and kind of Reference Property that a holder of one share of the Common Stock would be entitled to receive in such Common Stock Change Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property), a “Reference Property Unit”), then then, at and after the Companyeffective time of the Common Stock Change Event, the Company or the successor or purchasing companySuccessor Company, as the case may be, will execute with the Trustee and a supplemental indenture, without the consent of the Holders, a supplemental indenture providing thatthat (x) the consideration due upon conversion of any Note, at and after the effective time of conditions to any such Merger Eventconversion, the right to convert each $1,000 principal amount of Notes shall be changed into a right determined in the same manner as if each reference to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal in the provisions set forth in this Article 14 (or in any related definitions) were instead a reference to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount same number of Reference Property that a holder of one share of Common Stock is entitled to receiveUnits; and (y) upon such Merger Event; provided, however, that at and after the effective time for purposes of the Merger Event definition of “Fundamental Change” and “Make-Whole Fundamental Change,” the terms “Common Stock” and “Common Equity” shall be deemed to mean the Common Equity (A) the Company shall continue to have the right to determine the form including depositary receipts representing common equity), if any, forming part of consideration to be paid or deliveredsuch Reference Property. For these purposes, as the case may be, upon conversion of Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP or Last Reported Sale Price of any Reference Property Unit or portion thereof that does not consist of a class of securities shall be calculated based on the fair value of a unit such Reference Property Unit or portion thereof, as applicable, determined in good faith by the Company (or, in the case of Reference Propertycash denominated in U.S. dollars, the face amount thereof). If the Merger Common Stock Change Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the composition of the Reference Property into which the Notes will be convertible Unit shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Common Stock Change Event, then for all conversions with a Conversion Date that occur occurs on or after the effective date of such Merger Common Stock Change Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.03Section 14.03), multiplied by the price paid per share of Common Stock in such Merger Common Stock Change Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. The supplemental indenture described in the second immediately preceding paragraph shall shall, if applicable, provide for anti-dilution and other adjustments that shall be are as nearly equivalent as is possible to the adjustments provided for in this Article XIArticle 14. If, in the case of any Merger Event, If the Reference Property in respect of any Common Stock Change Event includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor Company or purchasing corporationthe Successor Company, as the case may be, in such Merger Common Stock Change Event, then such supplemental indenture shall also be executed by such other Person Person, and such supplemental indenture shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall Company reasonably consider considers necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XIIArticle 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a(a) of this Section 11.07Section 14.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property Unit after any such Merger Common Stock Change Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Common Stock Change Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 Section 14.01 and Section 11.02 Section 14.02 prior to the effective date of such Merger Common Stock Change Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Common Stock Change Events.
(e) Upon the consummation of any Common Stock Change Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes capital stock after giving effect to such Common Stock Change Event.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes any recapitalization, reclassification or change resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the CompanyReference Entity,
(iii) any sale, lease or other transfer to a third party of all or substantially all of the consolidated assets of the Company Reference Entity and the CompanyReference Entity’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) ), other than any transaction that constitutes a Spin-Off, a Split-Off or a Share Election Merger (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert exchange each $1,000 principal amount of Notes shall be changed into a right to convert or exchange such principal amount of Notes into or for, respectively, the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Exchange Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, and the Reference Entity shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to exchange each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion or exchange of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion or exchange of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion or exchange of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. For the avoidance of doubt, as of the Supplemental Indenture Effective Date, (x) the Reference Property for all purposes hereunder shall be Common Stock and (y) the unit of Reference Property for all purposes hereunder shall be one share of Common Stock, in each case, subject to further modification pursuant to Section 11.05, Section 14.04 and this Section 14.07. 105 If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible convertible, or for which the Notes will be exchangeable, shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur exchanges for which the relevant Exchange Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion exchange of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Exchange Rate in effect on the Conversion Exchange Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Exchange Obligation by paying cash to converting exchanging Holders on no later than the second third Business Day immediately following the relevant Conversion Exchange Date. The Company shall notify Holders, the Trustee and the Exchange Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Reference Entity or the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Company’s Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase repurchase rights set forth in Article XII15.
(b) In the event When the Company shall and the Reference Entity execute a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07(a), the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) Neither the Company nor the Reference Entity shall consummate any Merger Event unless the consummation of such Merger Event occurs in accordance with this Section 14.07. None of the foregoing provisions shall affect the right of a holder Holder of Notes to convert exchange its Notes into for cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section 14.07 shall similarly apply to successive Merger Events.. 106
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combinationcombination or changes in par value or to no par value),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of New Third Lien Secured Notes shall be changed into a right to convert such principal amount of New Third Lien Secured Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Third Lien Trustee a supplemental indenture permitted under Section 9.01(p) providing for such change in the right to convert each $1,000 principal amount of New Third Lien Secured Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of New Third Lien Secured Notes in accordance with Section 11.02 13.02 and (B) (I) any amount payable in cash upon conversion of the New Third Lien Secured Notes in accordance with Section 11.02 13.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the New Third Lien Secured Notes in accordance with Section 11.02 13.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the New Third Lien Secured Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of New Third Lien Secured Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03)Date, multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Third Lien Trustee and the Conversion Agent (if other than the Third Lien Trustee) of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XIXIII. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the New Third Lien Secured Notes as the Board of Directors or a committee thereof Company shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XIISection 3.12.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0713.07, the Company shall promptly file with deliver to the Third Lien Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the this Third Lien Indenture, within 30 twenty (20) days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 13.07. None of the foregoing provisions shall affect the right of a holder Holder of New Third Lien Secured Notes to convert its New Third Lien Secured Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 13.01 and Section 11.02 13.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Samples: Third Lien Indenture (Bed Bath & Beyond Canada L.P.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the Company or the Successor Entity, as the case may be, will enter into a supplemental indenture with the Trustee, without the consent of the Holders, providing that the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company or the successor or purchasing Person, as the case may be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03)Date, multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. If the Reference Property in respect of any such Merger Event includes, in whole or in part, shares of Common Equity or American depositary receipts (or other interests) in respect thereof, such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14 with respect to the portion of the Reference Property consisting of such Common Equity or American depositary receipts (or other interests) in respect thereof. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) ), other than cash and/or cash equivalents, of a Person other than the Company or the successor or purchasing corporationentity, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person, if such Person is an Affiliate of the Company or the successor or purchasing entity, and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof Company shall in good faith reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder Holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section 14.07 shall similarly apply to successive Merger Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of substantially all of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entiretyexisting and future Subsidiaries, or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Specified Corporate Event”), then the Company, Company or the successor or purchasing companyacquiring corporation, as the case may be, will shall execute with the Trustee and without the consent of the Holders, a supplemental indenture permitted under Section 10.01(b) providing that, at and after the effective time of such Merger Specified Corporate Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Specified Corporate Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon the occurrence of such Merger Specified Corporate Event; provided, however, that at and after the effective time of the Merger Event Specified Corporate Event, (A) the Company or the successor or acquiring corporation, as the case may be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02, and in respect of the Interest Make-Whole Payment, if applicable, in accordance with Section 14.01(b) and (B) (Ix) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.01 and Section 14.02 shall continue to be payable in cash, (IIy) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.01 and Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Specified Corporate Event and (IIIz) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Specified Corporate Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder shareholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Specified Corporate Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Specified Corporate Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.04), multiplied by the price paid per share of Common Stock in such Merger Specified Corporate Event and (B) the Company shall satisfy the Conversion Obligation by paying such cash amount to converting Holders on the second third Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for (x) anti-dilution and other adjustments that shall be as nearly equivalent as is possible practicable to the adjustments provided for in this Article XISection 14.09, with respect to any Reference Property consisting of shares of Common Equity, and (y) with respect to any other Reference Property, such adjustments (if any) that the Board of Directors determines in good faith are appropriate. If, in the case of any Merger Specified Corporate Event, the Reference Property includes shares of stock, securities Common Equity or other property or assets (including cash or any combination thereof) of securities issued by a Person company that is party to such transaction but is not the Company, such other than the successor or purchasing corporationcompany will also execute such supplemental indenture, as the case may be, in such Merger Event, then and such supplemental indenture shall also be executed by such other Person and shall will contain such additional provisions and modifications as the Board of Directors reasonably considers necessary or appropriate to protect the interests of the Holders, including the right of Holders of to require the Notes as the Board of Directors or Company to purchase their notes upon a committee thereof shall reasonably consider necessary Fundamental Change by reason of the foregoing. If the Notes become convertible into Reference Property, including the provisions providing for Company shall notify the purchase rights set forth in Article XIIHolders, the Trustee and the Conversion Agent (if other than the Trustee) and publish the information on the Company’s website or through such other public medium as the Company may use at that time.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.09, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.09. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into shares of Common Stock or, following receipt of Stockholder Approval, cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, all as set forth in Section 11.01 14.01 and Section 11.02 14.02, prior to the effective date of such Merger Specified Corporate Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Specified Corporate Events.
Appears in 1 contract
Samples: Indenture (Cyan Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such an event, a “Merger Common Stock Change Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee ,” and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities securities, other property, assets or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (cash, the “Reference Property,” with each “unit of Reference Property” meaning and the amount and kind and amount of Reference Property that a holder of one share of Common Stock is would be entitled to receive) upon receive on account of such Merger Event; providedCommon Stock Change Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property), howevera “Reference Property Unit”), that then, at and after the effective time of the Merger Event transaction:
(Ai) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, due upon conversion of Notes in accordance with Section 11.02 any Note, and (B) (I) the conditions to any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to such conversion, will be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable determined in the amount and type of Reference Property that a holder of that same manner as if each reference to any number of shares of Common Stock would have received in the provisions described in Section 14.02 (or in any related definitions) were instead a reference to the same number of Reference Property Units,
(ii) for purposes of the redemption provisions described in Article 16, each reference to any number of shares of the Common Stock in such Merger Event provisions (or in any related definitions) will instead be deemed to be a reference to the same number of Reference Property Units;
(iii) for the purposes of the definitions of “Fundamental Change” and “Make-Whole Fundamental Change”, the terms “common stock” and “common equity” will be deemed to mean the common equity (IIIincluding depositary receipts representing common equity), if any, forming part of such Reference Property; and
(iv) for these purposes, (1) the Daily VWAP shall of any Reference Property Unit or portion thereof that consists of a class of common equity securities will be calculated based on determined by reference to the definition of “Daily VWAP”, substituting, if applicable, the Bloomberg page for such class of securities in such definition; and (2) the Daily VWAP of any Reference Property Unit or portion thereof that does not consist of a class of common equity securities, and the Last Reported Sale Price of any Reference Property Unit or portion thereof that does not consist of a class of securities, will be the fair value of a unit such Reference Property Unit or portion thereof, as applicable, determined in good faith by the Company (or, in the case of Reference Propertycash denominated in U.S. dollars, the face amount thereof). If the Merger Common Stock Change Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the composition of the Reference Property into which the Notes Unit will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received per share of Common Stock by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will shall notify holdersHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as reasonably practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Common Stock Change Event, then for all conversions that occur for which the relevant Conversion Date occurs on or after the effective date of such Merger Event Common Stock Change Event, (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of the Common Stock in such Merger Event transaction and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second tenth Business Day immediately following the relevant Conversion Date. Such If the Reference Property in respect of any Common Stock Change Event includes, in whole or in part, common equity, the supplemental indenture described in providing that the second immediately preceding paragraph Notes will convertible into Reference Property (other than cash) shall also provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14 with respect to the portion of Reference Property constituting such common equity. If, in the case of any Merger Common Stock Change Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) ), other than cash and/or cash equivalents, of a Person other than the Company or the successor or purchasing corporationcompany, as the case may be, in such Merger Common Stock Change Event, then such supplemental indenture shall also be executed by such other Person, if such Person is an Affiliate of the Company or the successor or purchasing company, and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof Company shall in good faith reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Common Stock Change Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Common Stock Change Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Common Stock Change Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Common Stock Change Events.
Appears in 1 contract
Samples: Indenture (Cerence Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the CompanyBorrower,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company Borrower and the Company’s Subsidiaries substantially as an entirety, its Subsidiaries; or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, or other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the conversion right to convert each $1,000 principal amount of Notes the Lender shall be changed into a right to convert such principal amount of Notes amounts into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate Converted Shares immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event; providedEvent and, however, that prior to or at and after the effective time of such Merger Event, the Merger Event (A) Borrower or the Company shall continue to have the right to determine the form of consideration to be paid successor or deliveredpurchasing Person, as the case may be, upon conversion of Notes in accordance shall execute with Section 11.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable Lender a supplemental agreement providing for such change in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and option to convert (III“Supplemental Agreement”).
(b) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes amounts due hereunder will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that which occur after the effective date of such Merger Event Event, (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03), number of originally Converted Shares multiplied by the price paid per share of Common Stock in such Merger Event and (B) shall be paid to the Company shall satisfy Converting Lenders on or before the Conversion Obligation by paying cash to converting Holders on the second third Business Day immediately following the relevant Business Day upon which the Conversion DateNotice was received. Such supplemental indenture described The Borrower shall notify Lender of any such weighted average referred to in the second immediately preceding first sentence of this paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent soon as practicable after such determination is possible to the adjustments provided for in this Article XI. made.
(c) If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture Supplemental Agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders Converting Lenders as the board of directors of the Notes as the Board of Directors or a committee thereof Borrower shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII.
(bd) In When the event the Company shall execute Borrower executes a supplemental indenture pursuant to subsection (a) of this Section 11.07Supplemental Agreement, the Company Borrower shall promptly file with deliver to the Trustee Lender a certificate, signed by an Officers’ Certificate Officer of the Borrower, briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all HoldersConverting Lenders. The Company Borrower shall cause notice of the execution of such supplemental indenture Supplemental Agreement to be given to each Holder, at its address appearing on the Note Register provided for in the Indenture, Converting Lender within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indentureSupplemental Agreement.
(ce) The Borrower shall not become a party to any Merger Event unless its terms are consistent with this Section 8.6. None of the foregoing provisions shall affect the right of a holder of Notes Lender to convert its Notes any portion of the Term Loan into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 and Section 11.02 prior to the effective date of such Merger Event.
(df) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Samples: Loan and Security Agreement (Spring Bank Pharmaceuticals, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) : any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) , any consolidation, merger or combination involving the Company,
(iii) , any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s 's Subsidiaries substantially as an entirety, or
(iv) entirety or any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “"Merger Event”"), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “"Reference Property,” ", with each “"unit of Reference Property” " meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(f) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second third Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII.
(b) In the event 15. When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee Trustee, in addition to the requirements of Section 10.05 hereunder, an Officers’ Officer's Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) . The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) . The above provisions of this Section shall similarly apply to successive Merger Events. Upon the consummation of any Merger Event, references to "Common Stock" shall be deemed to refer to any Reference Property that constitutes capital stock after giving effect to such Merger Event.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(f) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event the Conversion Obligation shall be calculated and settlement in accordance with Section 14.02 such that (A) the Company amount otherwise payable in cash upon conversion of the Notes as set forth under Section 14.02 shall continue to have the right to determine the form of consideration to be paid or deliveredpayable in cash, as the case may be, upon conversion of Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash the number of shares of Common Stock otherwise deliverable upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Merger Event and (IIIC) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or election, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (Ax) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (By) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second third Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07 and in accordance with the requirements of Section 10.05, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicableif any, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Samples: Indenture (Medicines Co /De)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, Subsidiaries; or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then then, prior to or at the Companyeffective time of such Merger Event, the Company or the successor or purchasing companyPerson, as the case may be, will shall execute with the Trustee and without the consent of the Holders, a supplemental indenture an amendment to this Note providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes the Note shall be changed into a right to convert such principal amount of Notes the Note into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the quotient of the Note amount divided by the applicable Conversion Rate Price immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock stock is entitled to receive) upon such Merger Event; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form number of consideration to be paid or delivered, as the case may be, Common Stock otherwise deliverable upon any conversion of Notes the Note in accordance with Section 11.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 Article 3 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference PropertyEvent. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder holder election), then (i) (A) the Reference Property into which the Notes Note will be convertible shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiB) if no such holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The , and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stockstock. The Company will notify holders, shall provide written notice to the Trustee and the Conversion Agent (if other than the Trustee) in writing Holder of the such weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture amendment described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible practicable to the adjustments provided for in this Article XI4 (it being understood that no such adjustments shall be required with respect to any portion of the Reference Property that does not consist of shares of Common Equity (however evidenced) or depositary receipts in respect thereof). If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Company or the successor or purchasing corporationPerson, as the case may be, in such Merger Event, then such supplemental indenture other Person shall also be executed by execute such other Person amendment, and such amendment shall contain such additional provisions to protect the interests of the Holders of the Notes Holder as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.07, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given to each Holder, at its address appearing on the Note Register provided for in the Indenture, within 30 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of a holder of Notes the Holder to convert its Notes this Note into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 and Section 11.02 Article 3 prior to the effective date of such Merger Event.
(dc) The above provisions of this Section 4.2 shall similarly apply to successive Merger Events.
Appears in 1 contract
Samples: Convertible Note (Global Seed Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combinationcombination or a change solely in par value),;
(ii) any consolidation, merger or combination involving the Company,;
(iii) any sale, lease or other transfer to a third party of the consolidated assets all or substantially all of the Company and the Company’s Subsidiaries substantially as an entirety, Subsidiaries’ consolidated assets; or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock then outstanding would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such an event, a “Merger Common Stock Change Event,” and such stock, other securities, other property or cash, the “Reference Property,” and the amount and kind of Reference Property that a holder of one (1) share of Common Stock would be entitled to receive on account of such Common Stock Change Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property), a “Reference Property Unit”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of the transaction: (1) the consideration due upon conversion of any Note, and the conditions to any such Merger Eventconversion, will be determined in the right same manner as if each reference to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal in Article 8 were instead a reference to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount same number of Reference Property that a holder of one share of Common Stock is entitled to receiveUnits; and (2) upon such Merger Event; provided, however, that at and after the effective time for purposes of the Merger Event definition of “Fundamental Change” and “Make-Whole Fundamental Change,” the terms “Common Stock” and “Common Equity” will be deemed to mean the Common Equity (A) the Company shall continue to have the right to determine the form including depositary receipts representing Common Equity), if any, forming part of consideration to be paid or deliveredsuch Reference Property. For these purposes, as the case may be, upon conversion of Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall or Last Reported Sale Price of any Reference Property Unit or portion thereof that does not consist of a class of securities will be calculated based on the fair value of a unit such Reference Property Unit or portion thereof, as applicable, determined in good faith by the Company (or, in the case of Reference Propertycash denominated in U.S. dollars, the face amount thereof). If the Merger Common Stock Change Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the composition of the Reference Property into which the Notes Unit will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Common Stock Change Event, then for all conversions with a Conversion Date that occur occurs on or after the effective date of such Merger Event Common Stock Change Event, (Ai) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to as described in Section 11.038.03), multiplied by the price paid per share of Common Stock in such Merger Event transaction and (Bii) the Company shall will satisfy the its Conversion Obligation by paying cash to converting Holders on or before the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI. If, in the case of any Merger EventThe Company will notify Holders, the Reference Property includes shares of stock, securities or other property or assets Trustee and the Conversion Agent (including cash or any combination thereof) of a Person if other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests Trustee) of the Holders of the Notes weighted average as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XIIsoon as practicable after such determination is made.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.07, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture not become a party to be given to each Holder, at any Common Stock Change Event unless its address appearing on the Note Register provided for terms are consistent with this Section 8.08 in the Indenture, within 30 days after execution thereofall material respects. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of a holder Holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 and Section 11.02 accordance with the Indenture prior to the effective date of such Merger Common Stock Change Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then then, the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture permitted under Section 10.01(g), providing that, that at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form number of consideration to be paid or delivered, as the case may be, upon conversion shares of Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash Common Stock otherwise deliverable upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference PropertyEvent. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of the Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will shall notify holdersHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such The supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XIArticle 14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Company or the successor or purchasing corporation, as the case may be, in such Merger Event, then such other company shall also execute such supplemental indenture, and such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders, including the right of Holders of to require the Company to repurchase their Notes upon a Fundamental Change under Article 15, as the Board of Directors or a committee thereof shall reasonably consider considers necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII. The Company may not to become a party to any Merger Event unless its terms are consistent with this Section 14.07.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a(a) of this Section 11.07Section 14.07, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes Holder to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 Section 14.01 and Section 11.02 Section 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
(e) Upon the consummation of any Merger Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes capital stock after giving effect to such Merger Event.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change only in par value, from par value to no par value or from no par value to par value, or changes resulting from a subdivision or combinationcombination of the Common Stock),
(ii) any consolidation, consolidation or merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries substantially Subsidiaries, taken as an entirety, a whole; or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, or represent solely the right to receive, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or securities, other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (assets, the “Reference Property,” with each “unit of Reference Property” meaning and the amount and kind and amount of Reference Property that a holder of one share of Common Stock is would be entitled to receivereceive on account of such transaction, a “Reference Property Unit”) upon (and any such Merger recapitalization, reclassification, change, consolidation, merger, sale, lease, transfer or exchange, a “Share Exchange Event; provided”), howeverthen, that notwithstanding anything to the contrary in the Indenture or the Notes, at and after the effective time of such Share Exchange Event, the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, due upon conversion of any Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to will be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable determined in the amount and type of Reference Property that a holder of that same manner as if each reference to any number of shares of Common Stock would have received in such Merger Event and (III) herein were instead a reference to the same number of Reference Property Units. For these purposes, the Daily VWAP shall or Last Reported Sale Price of any Reference Property Unit or portion thereof that does not consist of a class of securities will be calculated based on the fair value of a unit such Reference Property Unit or portion thereof, as applicable, determined in good faith by the Company (or, in the case of Reference Propertycash denominated in U.S. dollars, the face amount thereof). If the Merger Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then the composition of the Reference Property Unit will be deemed to be (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average average, per share of Common Stock, of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one received, per share of Common Stock. The Company will notify holders, by the Trustee and the Conversion Agent (if other than the Trustee) in writing holders of the weighted average as soon as practicable after such determination is madeCommon Stock. If the holders of Common Stock receive only cash in such Merger Share Exchange Event, then for all conversions of Notes that occur after the effective date of such Merger Event Share Exchange Event, (Ai) the consideration due upon conversion of each $1,000 principal amount of Notes shall shall, for the avoidance of doubt, be solely cash in an amount equal to the Conversion Rate in effect on the applicable Conversion Date (as as, for the avoidance of doubt, may be increased pursuant to Section 11.0312.03), multiplied by the price paid per share of Common Stock in such Merger Share Exchange Event and (Bii) the Company shall satisfy the its Conversion Obligation Obligations by paying cash to converting Holders on the second third Business Day immediately following the relevant applicable Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph The Company shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI. If, in the case of any Merger Eventnotify Holders, the Reference Property includes shares of stock, securities or other property or assets Trustee and the Conversion Agent (including cash or any combination thereof) of a Person if other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests Trustee) of the Holders of the Notes weighted average as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XIIsoon as practicable after such determination is made.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.0712.06, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or and amount of cash, securities or property or asset that will comprise a unit of Reference Property constituting the Reference Property after any such Merger the relevant Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given sent to each Holder, at its address appearing on the Note Register provided for in the Indenture, within 30 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Share Exchange Event unless its terms are consistent with this Section 12.06. None of the foregoing provisions shall affect the right of a holder of Notes Holder to convert its Notes into cash, shares of Common Stock (or other Reference Property) or a combination of cash and shares of Common StockStock (or other Reference Property), as applicable, as set forth in Section 11.01 12.01 and Section 11.02 12.02 prior to the effective date of such Merger Share Exchange Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Share Exchange Events.
Appears in 1 contract
Samples: First Supplemental Indenture (Apollo Commercial Real Estate Finance, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),;
(ii) any a consolidation, merger merger, business combination, binding share exchange or combination similar transaction involving the Company,;
(iii) any a sale, assignment, conveyance, transfer, lease or other transfer disposition to a third party of the consolidated assets another Person of the Company and the Company’s Subsidiaries property and assets as an entirety or substantially as an entirety, ; or
(iv) any statutory share exchangea liquidation or dissolution of the Company, in each case, as a result of which holders of the outstanding Common Stock would be converted intoare entitled to receive cash, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of for their shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) (any such transaction, a “Share Exchange Event”), the Company or the successor or purchasing corporation, as the case may be, shall execute with the Trustee a supplemental indenture providing that, at and after the effective time of such Share Exchange Event, Holders of each $1,000 principal amount of Notes shall be entitled thereafter to convert their Notes into the kind and amount of Reference Property that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Share Exchange Event would have owned or been entitled to receive upon such Merger Share Exchange Event; provided. However, however, that at and after the effective time of the Merger Share Exchange Event (A) if the Company has received Stockholder Approval prior to the relevant Stockholder Approval Deadline in respect of any conversion of Notes, (I) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 and 14.02, (B) (III) any amount otherwise payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (IIIII) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have been entitled to receive in such Share Exchange Event and (IV) the Daily VWAP shall be calculated based on the value of a unit of Reference Property and (B) if the Company has not received Stockholder Approval prior to the relevant Stockholder Approval Deadline in respect of any conversion of Notes, the number of shares of Common Stock otherwise deliverable upon conversion of the Notes in accordance with Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event Share Exchange Event. For purposes of the foregoing, the type and (III) amount of consideration that holders of the Daily VWAP shall be calculated based on Common Stock are entitled to in the value case of a unit of Reference Property. If the Merger Event causes Share Exchange Events that cause the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form because the holders of stockholder election), then (i) the Reference Property into which Common Stock have the Notes will be convertible right to elect the type of consideration they receive shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (ii) or, if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The ), and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Share Exchange Event, then for all conversions that occur after the effective date of such Merger Share Exchange Event (Ax) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Share Exchange Event and (By) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second third Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Share Exchange Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes, including the right of Holders of Notes to require the Company to repurchase their Notes upon a Fundamental Change, as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. In addition, the Company shall issue a press release containing the relevant information (and make the press release available on its website). The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in this Indenture in the Indenturecase of Physical Notes (and, in the case of Global Notes, sent electronically in accordance with the applicable procedures of the Depositary), within 30 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Share Exchange Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder Holder of Notes to convert its Notes into shares of Common Stock or, following receipt of Stockholder Approval, cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Share Exchange Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Share Exchange Events.
Appears in 1 contract
Samples: Indenture (LGI Homes, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case event of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),;
(ii) any a consolidation, merger merger, combination, binding share exchange or combination similar transaction involving the Company,;
(iii) any a sale, assignment, conveyance, transfer, lease or other transfer disposition to a third party another Person of the consolidated assets of the Company and the Company’s Subsidiaries property and assets as an entirety or substantially as an entirety, ; or
(iv) any statutory share exchangea liquidation or dissolution of the Company, in each case, as a result in which holders of which the outstanding Common Stock would be converted intoare entitled to receive cash, securities or exchanged for, stock, other securities, other property or assets for their shares of Common Stock (including cash or any combination thereof) (“Reference Property” and any such eventtransaction, a “Merger Share Exchange Event”), then the Company, Company or the successor or purchasing company, as the case may be, will shall execute with the Trustee and without the consent of the Holders, a supplemental indenture permitted under Section 10.01(g), providing that, at and after the effective time of such Merger Share Exchange Event, the right to convert Holders of each $1,000 principal amount of Notes shall be changed into a right entitled to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Share Exchange Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a “unit of Reference Property”) upon such Share Exchange Event. If the Merger Notes become convertible into Reference Property pursuant to this Section 14.05, the Company shall notify the Trustee and the Holders and issue a press release containing the relevant information (and make the press release available on the Company’s website). Throughout this Article 14, if the Common Stock has been replaced by Reference Property in accordance with this Section 14.05 as a result of any Share Exchange Event, references to the Common Stock are intended to refer to such Reference Property, subject to the provisions of the supplemental indenture described in this paragraph. If the Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form because the holders of stockholder election)the Common Stock have the right to elect the type of consideration they will receive, then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will shall notify holdersHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Share Exchange Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes Notes, including the provisions providing for the repurchase rights set forth in Article 15, as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.05, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail give notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given to each Holder, at its address appearing on the Note Register provided for in the Indentureaccordance with Section 19.03, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Share Exchange Event unless its terms are consistent with this Section 14.05. None of the foregoing provisions shall affect the right of a holder of Notes Holder to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Share Exchange Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Share Exchange Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification reclassification, or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, or combination involving the Company,
(iii) any sale, lease lease, or other transfer to a third party of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries substantially Subsidiaries, taken as an entiretya whole, or
(iv) any statutory share exchange, in each case, as a result of which holders of the Common Stock would be entitled to receive or their Common Stock would be converted into, or exchanged for, shares, stock, other securities, or other property or assets (including cash or any combination thereof) (any such event, a “Merger Common Stock Change Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Common Stock Change Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of shares, stock, other securities securities, or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Common Stock Change Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Common Stock Change Event and, prior to or at the effective time of such Common Stock Change Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(f) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Common Stock Change Event (A) the Company shall continue to have the right to determine the form of consideration elect physical settlement, cash settlement, or combination settlement with respect to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 13.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 13.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 13.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and Common Stock Change Event, (III) the Daily VWAP shall be calculated based on the value of a unit kind and amount of Reference PropertyProperty and (IV) the conditions to conversion described in Section 13.01(b)(ii) and Section 13.01(b)(iv) will be determined as if each reference to a share of Common Stock were instead a reference to a Reference Property unit. If the Merger Common Stock Change Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Common Stock Change Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Common Stock Change Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0313.03), multiplied by the cash price paid per share of Common Stock in such Merger Common Stock Change Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second third Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee, and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XIXIII. If, in the case of any Merger Common Stock Change Event, the Reference Property includes shares of stock, securities securities, or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Common Stock Change Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0713.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Common Stock Change Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register as provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of a holder Holder of Notes to convert its Notes into cash, shares of Common Stock Stock, or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 13.01 and Section 11.02 13.02 prior to the effective date of such Merger Common Stock Change Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Common Stock Change Events.
(e) Upon the consummation of any Common Stock Change Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes capital stock after giving effect to such Common Stock Change Event.
Appears in 1 contract
Samples: Indenture (Square, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the Company or the Successor Entity, as the case may be, will enter into a supplemental indenture with the Trustee, without the consent of the Holders, providing that the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company or the successor or purchasing Person, as the case may be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03)Date, multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. If the Reference Property in respect of any such Merger Event includes, in whole or in part, shares of Common Equity or American depositary receipts (or other interests) in respect thereof, such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14 with respect to the portion of the Reference Property consisting of such Common Equity or American depositary receipts (or other interests) in respect thereof. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) ), other than cash and/or cash equivalents, of a Person other than the Company or the successor or purchasing corporationentity, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person, if such Person is an Affiliate of the Company or the successor or purchasing entity, and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof Company shall in good faith reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder Holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, or
entirety or (iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Specified Corporate Event”), then the Company, Company or the successor or purchasing companyacquiring corporation, as the case may be, will shall execute with the Trustee and without the consent of the Holders, a supplemental indenture permitted under Section 10.01(l) providing that, at and after the effective time of such Merger Specified Corporate Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Specified Corporate Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon the occurrence of such Merger Event; provided, however, that at Specified Corporate Event together with any interest Make-Whole Payment under Section 14.01(b) and after the effective time of the Merger Event (A) the Company shall continue to have or the right to determine the form of consideration to be paid successor or deliveredacquiring corporation, as the case may be, upon conversion of Notes in accordance shall execute with Section 11.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable Trustee a supplemental indenture providing for such change in the right to convert each $1,000 principal amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference PropertyNotes. If the Merger Specified Corporate Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder shareholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Specified Corporate Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Specified Corporate Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event Specified Corporate Event, together with any Interest Make-Whole Payment that is payable in respect of such conversions (which shall be payable solely in cash), and (B) the Company shall satisfy the Conversion Obligation and any Interest Make-Whole Payment by paying such cash amount to converting Holders on the second third Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for (x) anti-dilution and other adjustments that shall be as nearly equivalent as is possible practicable to the adjustments provided for in this Article XI14, with respect to any Reference Property consisting of shares of Common Equity, and (y) with respect to any other Reference Property (other than cash), such adjustments (if any) that the Board of Directors determines in good faith are appropriate. If, in the case of any Merger Specified Corporate Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Company or the successor or purchasing corporation, as the case may be, in such Merger Specified Corporate Event, then such other Person will also execute such supplemental indenture, and such supplemental indenture shall also be executed by such other Person and shall will contain such additional provisions to protect the interests of the Holders Holders, including the right of holders to require the Company to purchase their Notes upon a Fundamental Change as set forth in Article 15, as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing. If the notes become convertible into Reference Property, including the provisions providing for Company shall notify in writing the purchase rights set forth in Article XIIHolders, the Trustee and the Conversion Agent (if other than the Trustee).
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, all as set forth in Section 11.01 14.01 and Section 11.02 14.02, prior to the effective date of such Merger Specified Corporate Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Specified Corporate Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Share Exchange Event”), then the Company, Company or the successor or purchasing companyPerson, as the case may be, will shall execute with the Trustee and without the consent of the Holders, Holders a supplemental indenture providing that, at and after the effective time of such Merger Share Exchange Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Share Exchange Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Share Exchange Event, and, prior to or at the effective time of such Share Exchange Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(i) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Share Exchange Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Merger Share Exchange Event and (IIIB) the Daily VWAP shall be calculated based on the value or Last Reported Sale Price of a any unit of Reference PropertyProperty or portion thereof that does not consist of a class of securities shall be the fair value of such unit of Reference Property or portion thereof, as applicable, determined in good faith and in a commercially reasonable manner by the Company (or, in the case of cash denominated in U.S. dollars, the face amount thereof). If the Merger Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Share Exchange Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Share Exchange Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Share Exchange Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. If the Reference Property in respect of any such transaction includes, in whole or in part, shares of common equity or American depositary receipts (or other interests) in respect thereof, such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14 with respect to the portion of the Reference Property consisting such common equity or American depositary receipts (or other interests) in respect thereof. If, in the case of any Merger Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Company or the successor or purchasing corporation, as the case may be, in such Merger Share Exchange Event, then such Person shall also execute such supplemental indenture shall also be executed by and such other Person and supplemental indenture shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Share Exchange Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Share Exchange Events.
Appears in 1 contract
Samples: Indenture (Fluidigm Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such an event, a “Merger Common Stock Change Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee ,” and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities securities, other property, assets or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (cash, the “Reference Property,” with each “unit of Reference Property” meaning and the amount and kind and amount of Reference Property that a holder of one share of Common Stock is would be entitled to receive) upon receive on account of such Merger Event; providedCommon Stock Change Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property), howevera “Reference Property Unit”), that then, at and after the effective time of the Merger Event transaction:
(Ai) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, due upon conversion of Notes in accordance with Section 11.02 any Note, and (B) (I) the conditions to any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to such conversion, will be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable determined in the amount and type of Reference Property that a holder of that same manner as if each reference to any number of shares of Common Stock would have received in the provisions described in Section 14.02 (or in any related definitions) were instead a reference to the same number of Reference Property Units,
(ii) for purposes of the redemption provisions described in Article 16, each reference to any number of shares of the Common Stock in such Merger Event provisions (or in any related definitions) will instead be deemed to be a reference to the same number of Reference Property Units;
(iii) for the purposes of the definitions of “Fundamental Change” and “Make-Whole Fundamental Change”, the terms “common stock” and “common equity” will be deemed to mean the common equity (IIIincluding, except to the extent otherwise specified in such definitions, depositary receipts representing common equity), if any, forming part of such Reference Property; and
(iv) for these purposes, (1) the Daily VWAP shall of any Reference Property Unit or portion thereof that consists of a class of common equity securities will be calculated based on determined by reference to the definition of “Daily VWAP”, substituting, if applicable, the Bloomberg page for such class of securities in such definition; and (2) the Daily VWAP of any Reference Property Unit or portion thereof that does not consist of a class of common equity securities, and the Last Reported Sale Price of any Reference Property Unit or portion thereof that does not consist of a class of securities, will be the fair value of a unit such Reference Property Unit or portion thereof, as applicable, determined in good faith by the Company (or, in the case of Reference Propertycash denominated in U.S. dollars, the face amount thereof). If the Merger Common Stock Change Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the composition of the Reference Property into which the Notes Unit will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received per share of Common Stock by the holders of Common Stock. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as reasonably practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Common Stock Change Event, then for all conversions that occur for which the relevant Conversion Date occurs on or after the effective date of such Merger Event Common Stock Change Event, (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of the Common Stock in such Merger Event transaction and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second tenth Business Day immediately following the relevant Conversion Date. Such If the Reference Property in respect of any Common Stock Change Event includes, in whole or in part, common equity, the supplemental indenture described in providing that the second immediately preceding paragraph Notes will convertible into Reference Property (other than cash) shall also provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14 with respect to the portion of Reference Property constituting such common equity. If, in the case of any Merger Common Stock Change Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) ), other than cash and/or cash equivalents, of a Person other than the Company or the successor or purchasing corporation, as the case may be, in such Merger Common Stock Change Event, then such supplemental indenture shall also be executed by such other Person, if such Person is an Affiliate of the Company or the successor or purchasing corporation, and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof Company shall in good faith reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Common Stock Change Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Common Stock Change Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cashcash and, shares of Common Stock or a combination of cash and if applicable, shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Common Stock Change Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Common Stock Change Events.
Appears in 1 contract
Samples: Indenture (Model N, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes in par value or from or to no par value or resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such an event, a “Merger Common Stock Change Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee ” and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or securities, other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (assets, the “Reference Property,” with each “unit of Reference Property” meaning and the amount and kind and amount of Reference Property that a holder of one share of Common Stock is would be entitled to receive) upon receive on account of such Merger Common Stock Change Event; provided, howevera “unit of Reference Property”), that then, at and after the effective time of the Merger Event transaction, (Aw) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, due upon conversion of Notes in accordance with Section 11.02 any Note, and (B) (I) the conditions to any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to such conversion, will be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable determined in the amount and type of Reference Property that a holder of that same manner as if each reference to any number of shares of Common Stock would have received in the provisions described under this Article XIII (or in any related definitions) were instead a reference to the same number of Reference Property Units; (x) for purposes of the definition of “Fundamental Change” and “Make-Whole Fundamental Change,” the term “Common Stock” will be deemed to mean the Common Equity, if any, forming part of such Reference Property; (y) for purposes of Article XV, each reference to any number of shares of Common Stock in such Merger Event Article XV (or in any related definitions) will instead be deemed to be a reference to the same number of units of Reference Property and (IIIz) the Daily VWAP shall will be calculated based on the value of a unit of Reference PropertyProperty Unit. If the Merger Common Stock Change Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the unit of Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election election; or (iiy) if no holders of the Common Stock affirmatively make such an election, the weighted average of the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one share holders of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Common Stock Change Event, then for all conversions with a Conversion Date that occur occurs on or after the effective date of such Merger Common Stock Change Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall will be solely cash in an amount equal to the Conversion Rate in effect on the such Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0313.03), multiplied by the price paid per share of Common Stock in such Merger Common Stock Change Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second third (or, if the T+2 Effective Date has occurred by such Conversion Date, the second) Business Day immediately following the relevant such Conversion Date. Such The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. At or before the effective time of the Common Stock Change Event, the Company and the resulting, surviving or transferee Person (if not the Company) of such Common Stock Change event will execute and deliver to the Trustee a supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible gives effect to the adjustments provided for provisions described in this Article XIXIII and that contains such other provisions as the Company reasonably determines are appropriate to preserve the economic interests of the Holders. IfIf such Reference Property includes, in whole or in part, any stock or other securities, then such supplemental indenture will, to the case of any Merger Eventextent applicable, provide for subsequent adjustments to the Conversion Rate in a manner consistent with the provisions described in this Article XIII. In addition, if the Reference Property includes includes, in whole or part, shares of stock, securities stock or other property securities or assets (including other than cash or any combination thereofcash equivalents) of a Person other than the successor such resulting, surviving or purchasing corporation, as the case may be, in such Merger Eventtransferee Person, then such other Person will also execute such supplemental indenture shall also be executed by and such other Person and shall supplemental indenture will contain such additional provisions the Company reasonably determines are appropriate to protect preserve the economic interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XIIHolders.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.0713.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Common Stock Change Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 and Section 11.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger EventsCommon Stock Change Event.
Appears in 1 contract
Samples: Indenture (Pra Group Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then then, the Company, Company or the successor or purchasing company, as the case may be, will execute with the Trustee and Trustee, without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event the Conversion Obligation shall be calculated and settlement in accordance with Section 14.02 such that (A) the amount otherwise payable in cash upon conversion of the Notes as set forth under Section 14.02 shall continue to be payable in cash, (B) the Company shall continue to have the right to elect to determine the form of consideration to be paid or delivered, as the case may be, upon conversion in respect of the remainder, if any, of the Conversion Obligation in excess of the principal amount of the Notes in accordance with being converted as set forth under Section 11.02 and 14.02, (BC) (I) any amount payable in cash the number of shares of Common Stock, if any, otherwise deliverable upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (IIID) the Daily VWAP shall be calculated based on the value of a unit of Reference PropertyProperty that a holder of one share of the Common Stock would have received in such Merger Event. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Company, the successor or the purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with and an Opinion of Counsel stating that all conditions precedent have been complied with, and shall promptly mail give notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 calendar days after execution thereof. Failure to deliver give such notice shall not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicableif any, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
(e) Upon the consummation of any Merger Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes capital stock after giving effect to such Merger Event.
(f) For purposes of this Section 14.07, “Company” shall be deemed to include any successor or purchasing Person, as the case may be.
Appears in 1 contract
Samples: Indenture (Palo Alto Networks Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case event of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),;
(ii) any a consolidation, merger merger, combination, binding share exchange or combination similar transaction involving the Company,;
(iii) any a sale, assignment, conveyance, transfer, lease or other transfer disposition to a third party another Person of the consolidated assets of the Company and the Company’s Subsidiaries property and assets as an entirety or substantially as an entirety, ; or
(iv) any statutory share exchangea liquidation or dissolution of the Company, in each case, as a result in which holders of which the outstanding Common Stock would be converted intoare entitled to receive cash, securities or exchanged for, stock, other securities, other property or assets for their shares of Common Stock (including cash or any combination thereof) (“Reference Property” and any such eventtransaction, a “Merger Share Exchange Event”), then the Company, Company or the successor or purchasing companycompany , as the case may be, will shall execute with the Trustee and without the consent of the Holders, a supplemental indenture permitted under Section 10.01(g), providing that, at and after the effective time of such Merger Share Exchange Event, the right to convert Holders of each $1,000 principal amount of Notes shall be changed into a right entitled to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Share Exchange Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a “unit of Reference Property”) upon such Share Exchange Event. If the Merger Notes become convertible into Reference Property pursuant to this Section 14.07, the Company shall notify the Trustee and the Holders and issue a press release containing the relevant information (and make the press release available on the Company’s website). Throughout this Article 14, if the Common Stock has been replaced by Reference Property in accordance with this Section 14.07 as a result of any Share Exchange Event, references to the Common Stock are intended to refer to such Reference Property, subject to the provisions of the supplemental indenture described in this paragraph. If the Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form because the holders of stockholder election)the Common Stock have the right to elect the type of consideration they will receive, then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will shall notify holdersHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Share Exchange Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes Notes, including the provisions providing for the repurchase rights set forth in Article 15, as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail give notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given to each Holder, at its address appearing on the Note Register provided for in the Indentureaccordance with Section 17.03, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Share Exchange Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes Holder to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Share Exchange Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Share Exchange Events.
Appears in 1 contract
Samples: Indenture (Novavax Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(f) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form number of consideration to be paid or delivered, as the case may be, upon conversion shares of Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash Common Stock otherwise deliverable upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference PropertyEvent. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder shareholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or election, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will shall notify holdersHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including to the extent required by the Board of Directors and practicable the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event If the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of the Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail sent notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given sent to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Samples: Indenture (Photronics Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Share Exchange Event”), then the Company, Company or the successor or purchasing companyPerson, as the case may be, will shall execute with the Trustee and without the consent of the Holders, Holders a supplemental indenture providing that, at and after the effective time of such Merger Share Exchange Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Share Exchange Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Share Exchange Event, and, prior to or at the effective time of such Share Exchange Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(i) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Share Exchange Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Merger Share Exchange Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Share Exchange Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Share Exchange Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Share Exchange Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Share Exchange Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Share Exchange Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Share Exchange Events.
Appears in 1 contract
Samples: Indenture (Groupon, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting a change in par value, or from par value to no par value, or from no par value to par value, or as a subdivision or combinationresult of a transaction for which an adjustment is made pursuant to Section 14.04(a),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, or other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes at the Conversion Rate shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the such Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the such Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder shareholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second third Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average, if applicable, as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
(e) In connection with any Merger Event, the Initial Dividend Threshold shall be subject to adjustment as described in clause (i), clause (ii) or clause (iii) below, as the case may be.
(i) In the case of a Merger Event in which the Reference Property (determined, as appropriate, pursuant to subsection (a) above and excluding any dissenters’ appraisal rights) is composed entirely of shares of common stock (the “Merger Common Stock”), the Initial Dividend Threshold at and after the effective time of such Merger Event will be equal to (x) the Initial Dividend Threshold immediately prior to the effective time of such Merger Event, divided by (y) the number of shares of Merger Common Stock that a holder of one share of Common Stock would receive in such Merger Event (such quotient rounded down to the nearest cent).
(ii) In the case of a Merger Event in which the Reference Property (determined, as appropriate, pursuant to subsection (a) above and excluding any dissenters’ appraisal rights) is composed in part of shares of Merger Common Stock, the Initial Dividend Threshold at and after the effective time of such Merger Event will be equal to (x) the Initial Dividend Threshold immediately prior to the effective time of such Merger Event, multiplied by (y) the Merger Valuation Percentage for such Merger Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a Merger Event in which the Reference Property (determined, as appropriate, pursuant to subsection (a) above and excluding any dissenters’ appraisal rights) is composed entirely of consideration other than shares of common stock, the Initial Dividend Threshold at and after the effective time of such Merger Event will be equal to zero.
Appears in 1 contract
Samples: Indenture (Aceto Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, binding share exchange or combination involving the Company,, or
(iii) any sale, lease or other transfer conveyance to a third party another Person or entity of the consolidated assets of the Company and the Company’s Subsidiaries its subsidiaries substantially as an entirety, or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Share Exchange Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or securities, other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (assets, the “Reference Property,” with each “unit of Reference Property” meaning and the amount and kind and amount of Reference Property that a holder of one share of Common Stock is would be entitled to receivereceive on account of such Share Exchange Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property) upon such Merger Event; provideda “Reference Property Unit”), howeverthen, that at and after the effective time of the Merger Event such Share Exchange Event, (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, due upon conversion of Notes in accordance with Section 11.02 any Note, and (B) (I) the conditions to any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 such conversion, shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable determined in the amount and type of Reference Property that a holder of that same manner as if each reference to any number of shares of Common Stock would have received in such Merger Event and Article 13 (IIIor in any related definitions or provisions) were instead a reference to the same number of Reference Property Units; (B) the Daily VWAP shall be calculated based on the value of a unit Reference Property Unit; and (C) for purposes of the definitions of “Fundamental Change” and “Make-Whole Fundamental Change,” the term “Common Stock” shall be deemed to mean Common Equity (or ADRs or other interests in respect of Common Equity), if any, forming part of such Reference Property. In addition, prior to or at the effective time of such Share Exchange Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee and the Conversion Agent (if other than the Trustee) a supplemental indenture permitted under Section 10.01(c) providing that the Notes will be convertible as described in this Section 13.07. If the Merger Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the composition of the Reference Property into which the Notes will be convertible Unit shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one share all holders of Common Stock. The Company will shall notify holdersHolders and, in writing, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such composition of the weighted average Reference Property Unit as soon as reasonably practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Share Exchange Event, then for all conversions that occur for which the relevant Conversion Date occurs on or after the effective date of such Merger Share Exchange Event (Ai) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0313.03), multiplied by the price paid per share of Common Stock in such Merger Share Exchange Event and (Bii) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on or before the second Business Day immediately following the relevant Conversion Date. Such Any supplemental indenture providing that the Notes will be convertible as described in the second immediately preceding paragraph shall shall, to the extent applicable, also provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI13; provided that, for the avoidance of doubt, if the Reference Property in respect of any such Share Exchange Event consists solely of cash, such supplemental indenture will not be required to provide for such anti-dilution adjustments. If, in the case of any Merger Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Share Exchange Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof Company shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0713.07, the Company shall promptly file with the Trustee and the Conversion Agent (if other than the Trustee) an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property Unit after any such Merger Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Share Exchange Event unless its terms are consistent with this Section 13.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 13.01 and Section 11.02 13.02 prior to the effective date of such Merger Share Exchange Event.
(d) In connection with any adjustment to the Conversion Rates described in this Section 13.07, the Company shall also adjust the Initial Dividend Threshold based on the number of shares of Common Stock comprising the Reference Property and (if applicable) the value of any non-stock consideration comprising the Reference Property. If the Reference Property is composed solely of non-stock consideration, the Initial Dividend threshold shall be zero.
(e) The above provisions of this Section shall similarly apply to successive Merger Share Exchange Events.
Appears in 1 contract
Samples: Indenture (Xerox Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchange, entirety or in each case, as a result in which holders of which the Common Stock would be converted intoare entitled to receive cash, securities or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) for their shares of Common Stock (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01 providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with with, and subject to the limitations set forth in, Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or election, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (Ax) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (By) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second third Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including to the extent required by the Board of Directors and practicable the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefortherefore, the kind or amount of cash, securities or property or asset that will comprise a unit of the Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. In addition, the Company shall issue a press releasing containing such information and shall make such press release available on its website. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Samples: Indenture (Akorn Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case event of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),Stock;
(ii) any a consolidation, merger merger, combination or combination binding share exchange involving the Company,; or
(iii) any sale, lease a sale or other transfer conveyance to a third party another Person of the consolidated assets all or substantially all of the Company and the Company’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchange, property and assets; in each case, as a result of which the outstanding Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of for shares of stock, other securities or other property or assets (including cash or any combination thereof) that (such an event, a holder of a number of “Common Stock Change Event,” and such shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned stock, securities or been entitled to receive (other property, including cash or any combination thereof, the “Reference Property,” with each “unit and the amount and kind of Reference Property” meaning the kind and amount of Reference Property reference property that a holder of one share of Common Stock is would be entitled to receive) upon receive on account of such Merger Event; providedCommon Stock Change Event (without giving effect to any arrangement not to issue fractional shares of securities or other property), howevera “Reference Property Unit”), that then, at and after the effective time of the Merger Event Common Stock Change Event, (Ai) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, due upon conversion of Notes in accordance with Section 11.02 any Note, and (B) (I) the conditions to any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to such conversion, will be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable determined in the amount and type of Reference Property that a holder of that same manner as if each reference to any number of shares of Common Stock would have received in the provisions described under this Article IV (or in any related definitions in Section 1.02) were instead a reference to the same number of Reference Property Units; (ii) for purposes of the definition of “Fundamental Change” and “Make-Whole Fundamental Change,” the term “Common Stock” will be deemed to mean the common equity (which, for the avoidance of doubt, may include American Depositary Shares representing common equity), if any, forming part of such Reference Property; (iii) for purposes of Article VIII, each reference to any number of shares of Common Stock in such Merger Event Article (or in any related definitions) will instead be deemed to be a reference to the same number of Reference Property Units; and (IIIiv) for these purposes, the Daily VWAP shall and Last Reported Sale Price will be calculated based on the value of a unit Reference Property Unit, and for any Reference Property Unit or portion thereof that does not consist of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged fora class of securities, the right to receive Daily VWAP and or Last Reported Sale Price, as applicable, will be the fair value of such Reference Property Unit or portion thereof, as applicable, determined in good faith by the Company (or, in the case of cash denominated in U.S. dollars, the face amount thereof). For purposes of the foregoing, if the Reference Property consists of more than a single type of consideration (to be determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration received by the holders average, per share of Common Stock that affirmatively make such an election or (ii) if no holders Stock, of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one share holders of Common Stock. The Company will shall notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing Holders of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Common Stock Change Event, then for all conversions that occur after the effective date of such Merger Event transaction (Ax) the consideration due upon conversion of each $1,000 principal amount Original Principal Amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.034.06), multiplied by the price paid per share of Common Stock in such Merger Event transaction and (By) the Company shall be deemed to elect Cash Settlement and shall satisfy the its Conversion Obligation by paying cash to converting Holders on the second 10th Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.07, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of not become a party to any such supplemental indenture to be given to each Holder, at Common Stock Change Event unless its address appearing on the Note Register provided for in the Indenture, within 30 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indentureterms are consistent with this Section 4.07.
(c) None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 and Section 11.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section 4.07 shall similarly apply to successive Merger Common Stock Change Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger EventSpecified Transaction”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger EventSpecified Transaction, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event Specified Transaction would have owned or been entitled to receive upon such Specified Transaction (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon and, prior to or at the effective time of such Merger EventSpecified Transaction, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(k) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event such Specified Transaction (A) the amount otherwise payable in cash upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash; (B) the Company or the successor or purchasing Person, as the case may be, shall continue to have the right to elect to determine the form of consideration to be paid or delivered, as the case may be, upon conversion in respect of the remainder, if any, of the Conversion Obligation in excess of the aggregate principal amount of the Notes being converted in accordance with Section 11.02 and 14.02; (BC) (I) any amount payable in cash the number of shares of Common Stock, if any, otherwise deliverable upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event Specified Transaction and (IIID) the Daily VWAP shall be calculated based on the value of a unit of Reference PropertyProperty . If the Merger Event such Specified Transaction causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will shall notify holdersHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger EventSpecified Transaction, then for all conversions that occur after the effective date of such Merger Event Specified Transaction (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event Specified Transaction and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger EventSpecified Transaction, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Company or the successor or purchasing corporation, as the case may be, in such Merger EventSpecified Transaction, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger EventSpecified Transaction, any adjustment to be made with respect thereto and that all conditions precedent have been complied with and an Opinion of Counsel stating that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Specified Transaction unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes Holder to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicableif any, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger EventSpecified Transaction.
(d) The above provisions of this Section shall similarly apply to successive Merger EventsSpecified Transactions.
(e) Upon the consummation of any Specified Transaction, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes Common Equity after giving effect to such Specified Transaction.
Appears in 1 contract
Samples: Indenture (Akamai Technologies Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger EventSpecified Transaction”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger EventSpecified Transaction, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event Specified Transaction would have owned or been entitled to receive upon such Specified Transaction (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon and, prior to or at the effective time of such Merger EventSpecified Transaction, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(k) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event such Specified Transaction (A) the amount otherwise payable in cash upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash; (B) the Company or the successor or purchasing Person, as the case may be, shall continue to have the right to elect to determine the form of consideration to be paid or delivered, as the case may be, upon conversion in respect of the remainder, if any, of the Conversion Obligation in excess of the aggregate principal amount of the Notes being converted in accordance with Section 11.02 and 14.02; (BC) (I) any amount payable in cash the number of shares of Common Stock, if any, otherwise deliverable upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event Specified Transaction and (IIID) the Daily VWAP shall be calculated based on the value of a unit of Reference PropertyProperty . If the Merger Event such Specified Transaction causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will shall notify holdersHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger EventSpecified Transaction, then for all conversions that occur after the effective date of such Merger Event Specified Transaction (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event Specified Transaction and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger EventSpecified Transaction, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Company or the successor or purchasing corporation, as the case may be, in such Merger EventSpecified Transaction, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger EventSpecified Transaction, any adjustment to be made with respect thereto and that all conditions precedent have been complied with and an Opinion of Counsel stating that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Specified Transaction unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes Holder to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicableif any, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger EventSpecified Transaction.
(d) The above provisions of this Section shall similarly apply to successive Merger EventsSpecified Transactions.
(e) Upon the consummation of any Specified Transaction, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes Common Equity after giving effect to such Specified Transaction.
(f) In connection with any adjustment to the Conversion Rate with respect to a Specified Transaction, the Initial Dividend Threshold shall be adjusted based on the number of shares of common stock comprising the reference property and (if applicable) the value of any non-stock consideration comprising the reference property. If the reference property is composed solely of non-stock consideration, the initial dividend threshold will be zero.
Appears in 1 contract
Samples: Indenture (MKS Instruments Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 13.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 13.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 13.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.0313.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XIXIII. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XIIXIV.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.0713.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 13.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 13.01 and Section 11.02 13.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Samples: Indenture (INFINERA Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then then, the Company, Company or the successor Successor Company or purchasing acquiring company, as the case may be, will execute with the Trustee and a supplemental indenture, without the consent of the Holders, a supplemental indenture providing that, that at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second third Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, and such other Person is an Affiliate of the Company or the successor or purchasing corporation, as the case may be, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Samples: Indenture (Microchip Technology Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes in par value or from par value to no par value, or changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then then, at the Companyeffective time of the Merger Event, the Company or the successor or purchasing companyacquiring person, as the case may be, will shall execute with the Trustee and a supplemental indenture, without the consent of the Holders, a supplemental indenture providing that, that at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(j) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company or the successor or acquiring company, as the case may be, shall continue to have the right to elect to determine the form of consideration to be paid or delivered, as the case may be, upon conversion in respect of the remainder, if any, of the Conversion Obligation in excess of the principal amount of the Notes being converted, in accordance with Section 11.02 and 14.02, (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (IIC) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (IIID) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as reasonably practicable after such determination is made. If the Reference Property in respect of any Merger Event includes, in whole or in part, shares of Common Equity or securities convertible into or exchangeable for shares of Common Equity, the supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14 with respect to the portion of Reference Property consisting of such Common Equity or securities convertible into or exchangeable for shares of Common Equity. If, in the case of any Merger Event, If the Reference Property in respect of any such Merger Event includes shares of stock, securities or other property or assets (including assets, other than cash or any combination thereof) and/or cash equivalents, of a Person other than the Company or the successor or purchasing corporation, as the case may be, in such Merger Event and such other company, if an affiliate of the Company (or, if the Company does not survive the Merger Event, then an affiliate of the successor or purchasing company) is party to the transaction, such other company shall also execute such supplemental indenture, and such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof Company shall in good faith reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are reasonably consistent with this Section 14.07 and in compliance with Section 14.10. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Samples: Indenture (Vertex Energy Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Specified Corporate Event”), then the Company, Company or the successor or purchasing companyacquiring corporation, as the case may be, will shall execute with the Trustee and without the consent of the Holders, a supplemental indenture permitted under Section 10.01(l) providing that, at and after the effective time of such Merger Specified Corporate Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Specified Corporate Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon the occurrence of such Merger Event; provided, however, that at Specified Corporate Event together with any Interest Make-Whole Payment under Section 14.01(b) and after the effective time of the Merger Event (A) the Company shall continue to have or the right to determine the form of consideration to be paid successor or deliveredacquiring corporation, as the case may be, upon conversion of Notes in accordance shall execute with Section 11.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable Trustee a supplemental indenture providing for such change in the right to convert each $1,000 principal amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference PropertyNotes. If the Merger Specified Corporate Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder shareholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Specified Corporate Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Specified Corporate Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event Specified Corporate Event, together with any Interest Make-Whole Payment that is payable in respect of such conversions (which shall be payable solely in cash) and (B) the Company shall satisfy the Conversion Obligation and any Interest Make-Whole Payment by paying such cash amount to converting Holders on the second third Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for (x) anti-dilution and other adjustments that shall be as nearly equivalent as is possible practicable to the adjustments provided for in this Article XI14, with respect to any Reference Property consisting of shares of Common Equity, and (y) with respect to any other Reference Property (other than cash), such adjustments (if any) that the Board of Directors determines in good faith are appropriate. If, in the case of any Merger Specified Corporate Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Company or the successor or purchasing corporation, as the case may be, in such Merger Specified Corporate Event, then such other Person will also execute such supplemental indenture, and such supplemental indenture shall also be executed by such other Person and shall will contain such additional provisions to protect the interests of the Holders Holders, including the right of holders to require the Company to purchase their Notes upon a Fundamental Change as set forth in Article 15, as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing. If the notes become convertible into Reference Property, including the provisions providing for Company shall notify in writing the purchase rights set forth in Article XIIHolders, the Trustee and the Conversion Agent (if other than the Trustee).
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, all as set forth in Section 11.01 14.01 and Section 11.02 14.02, prior to the effective date of such Merger Specified Corporate Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Specified Corporate Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company or the successor or purchasing Person, as the case may be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 Section 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 Section 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.03Section 14.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XIArticle 14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Company or the successor or purchasing corporation (excluding, for the avoidance of doubt, cash paid by such Person or successor or purchasing corporation), as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof Company shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XIIArticle 15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a(a) of this Section 11.07Section 14.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 Section 14.01 and Section 11.02 Section 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
(e) Upon the consummation of any Merger Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes capital stock after giving effect to such Merger Event.
Appears in 1 contract
Samples: Indenture (Insight Enterprises Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes any recapitalization, reclassification or change resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the CompanyReference Entity,
(iii) any sale, lease or other transfer to a third party of all or substantially all of the consolidated assets of the Company Reference Entity and the CompanyReference Entity’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) ), other than any transaction that constitutes a Spin-Off, a Split-Off or a Share Election Merger (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert exchange each $1,000 principal amount of Notes shall be changed into a right to convert or exchange such principal amount of Notes into or for, respectively, the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Exchange Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, and the Reference Entity shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to exchange each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion or exchange of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion or exchange of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion or exchange of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible convertible, or for which the Notes will be exchangeable, shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur exchanges for which the relevant Exchange Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion exchange of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Exchange Rate in effect on the Conversion Exchange Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Exchange Obligation by paying cash to converting exchanging Holders on no later than the second third Business Day immediately following the relevant Conversion Exchange Date. The Company shall notify Holders, the Trustee and the Exchange Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Reference Entity or the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Company’s Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase repurchase rights set forth in Article XII15.
(b) In the event When the Company shall and the Reference Entity execute a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07(a), the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) Neither the Company nor the Reference Entity shall consummate any Merger Event unless the consummation of such Merger Event occurs in accordance with this Section 14.07. None of the foregoing provisions shall affect the right of a holder Holder of Notes to convert exchange its Notes into for cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section 14.07 shall similarly apply to successive Merger Events.
Appears in 1 contract
Samples: Indenture (Iac/Interactivecorp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),;
(ii) any consolidation, merger or combination involving the Company,Holdings;
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company Holdings and the Company’s its Subsidiaries substantially as an entirety, ; or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such eventeach, a “Merger Specified Corporate Event”), then the Company, Issuer and Holdings or the successor or purchasing companyIssuer and the Successor Company, as the case may be, will shall execute with the Trustee and without the consent of the Holders, a supplemental indenture permitted under Section 10.01 (l) providing that, at and after the effective time of such Merger Specified Corporate Event, the right to convert exchange each $1,000 principal amount Initial Principal Amount of Notes shall be changed into a right to convert exchange such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate Exchange Amount immediately prior to such Merger Specified Corporate Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon the occurrence of such Merger Specified Corporate Event; provided, however, that at and after the effective time of the Merger Event Specified Corporate Event, (A) then the Company Issuer (acting on the direction of Holdings) or the Successor Company, as the case may be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion exchange of Notes in accordance with Section 11.02 Section 14.02 and (B) (Ix) any amount payable in cash upon conversion exchange of the Notes in accordance with Section 11.02 Section 14.02 shall continue to be payable in cash, (IIy) any shares of Common Stock that the Company Holdings would have been required to deliver upon conversion exchange of the Notes in accordance with Section 11.02 Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Specified Corporate Event and (IIIz) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Specified Corporate Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder shareholder election), then (i) the Reference Property into which the Notes will be convertible exchangeable shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. If the holders of the Common Stock receive only cash in such Specified Corporate Event, then for all exchanges for which the relevant Exchange Date occurs after the effective date of such Specified Corporate Event (A) the consideration due upon exchange of each $1,000 Initial Principal Amount of Notes shall be solely cash in an amount equal to (a) the quotient of the Capitalized Principal Amount of such Note divided by the Exchange Price in effect on the Exchange Date (as may be decreased pursuant to Section 14.03), multiplied by (b) the price paid per share of Common Stock in such Specified Corporate Event and (B) the Issuer shall satisfy the Exchange Obligation by paying such cash amount to exchanging Holders on the third Business Day immediately following the relevant Exchange Date. The Company will Issuer shall notify holdersHolders, the Trustee and the Conversion Exchange Agent (if other than the Trustee) in writing of the such weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for (x) anti-dilution and other adjustments that shall be as nearly equivalent as is possible practicable to the adjustments provided for in this Article XIArticle 14, with respect to any Reference Property consisting of shares of Common Equity, and (y) with respect to any other Reference Property, such adjustments (if any) that the Board of Directors and the board of directors of Holdings determine in good faith are appropriate. If, in the case of any Merger Specified Corporate Event, the Reference Property includes shares of stock, securities or other property or assets (including other than cash or any combination thereofand/or cash equivalents) of a Person other than the successor Issuer or purchasing corporationthe Successor Company, as the case may be, in such Merger Specified Corporate Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof and the board of directors of Holdings shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase repurchase rights set forth in Article XIIArticle 15.
(b) In When the event the Company shall execute Issuer executes a supplemental indenture pursuant to subsection (a(a) of this Section 11.07Section 14.07, the Company Issuer shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Specified Corporate Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company Issuer shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 calendar days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) Neither the Issuer nor Holdings shall become a party to any Specified Corporate Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes Holder to convert exchange its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, all as set forth in Section 11.01 Section 14.01 and Section 11.02 Section 14.02, prior to the effective date of such Merger Specified Corporate Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Specified Corporate Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case event of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),Stock;
(ii) any a consolidation, merger merger, combination or combination binding share exchange involving the Company,; or
(iii) any sale, lease a sale or other transfer conveyance to a third party another Person of the consolidated assets all or substantially all of the Company and the Company’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchange, property and assets; in each case, as a result of which the outstanding Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of for shares of stock, other securities or other property or assets (including cash or any combination thereof) that (such an event, a holder of a number of “Common Stock Change Event,” and such shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned stock, securities or been entitled to receive (other property, including cash or any combination thereof, the “Reference Property,” with each “unit and the amount and kind of Reference Property” meaning the kind and amount of Reference Property reference property that a holder of one share of Common Stock is would be entitled to receive) upon receive on account of such Merger Event; providedCommon Stock Change Event (without giving effect to any arrangement not to issue fractional shares of securities or other property), howevera “Reference Property Unit”), that then, at and after the effective time of the Merger Event Common Stock Change Event, (Ax) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, due upon conversion of Notes in accordance with Section 11.02 any Note, and (B) (I) the conditions to any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to such conversion, will be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable determined in the amount and type of Reference Property that a holder of that same manner as if each reference to any number of shares of Common Stock would have received in the provisions described under this Article IV (or in any related definitions in Section 1.02) were instead a reference to the same number of Reference Property Units; (ii) for purposes of the definition of “Fundamental Change” and “Make-Whole Fundamental Change,” the term “Common Stock” will be deemed to mean the common equity (which, for the avoidance of doubt, may include American Depositary Shares representing common equity), if any, forming part of such Merger Event Reference Property; and (IIIiii) for these purposes, the Daily VWAP shall and Last Reported Sale Price will be calculated based on the value of a unit Reference Property Unit, and for any Reference Property Unit or portion thereof that does not consist of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged fora class of securities, the right to receive Daily VWAP and or Last Reported Sale Price, as applicable, will be the fair value of such Reference Property Unit or portion thereof, as applicable, determined in good faith by the Company (or, in the case of cash denominated in U.S. dollars, the face amount thereof). For purposes of the foregoing, if the Reference Property consists of more than a single type of consideration (to be determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (i) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one share holders of Common Stock. The Company will shall notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing Holders of the weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Common Stock Change Event, then for all conversions that occur after the effective date of such Merger Event transaction (Ax) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.034.06), multiplied by the price paid per share of Common Stock in such Merger Event transaction and (By) the Company shall be deemed to elect Cash Settlement and shall satisfy the its Conversion Obligation by paying cash to converting Holders on the second 10th Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.07, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of not become a party to any such supplemental indenture to be given to each Holder, at Common Stock Change Event unless its address appearing on the Note Register provided for in the Indenture, within 30 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indentureterms are consistent with this Section 4.07.
(c) None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 and Section 11.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section 4.07 shall similarly apply to successive Merger Common Stock Change Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes in par value or from or to no par value or resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such an event, a “Merger Common Stock Change Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee ,” and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or securities, other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (assets, the “Reference Property,” with each “unit of Reference Property” meaning and the amount and kind and amount of Reference Property that a holder of one share of Common Stock is would be entitled to receive) upon receive on account of such Merger Event; providedCommon Stock Change Event (without giving effect to any arrangement not to issue or deliver a fractional portion of any security or other property), howevera “Reference Property Unit”), that then, at and after the effective time of the Merger Event such Common Stock Change Event, (A1) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, due upon conversion of Notes in accordance with Section 11.02 any Note, and (B) (I) the conditions to any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to such conversion, will be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable determined in the amount and type of Reference Property that a holder of that same manner as if each reference to any number of shares of Common Stock would have received in Article XIII (or in any related definitions) were instead a reference to the same number of Reference Property Units; (2) for purposes of the definition of “Fundamental Change” and “Make-Whole Fundamental Change,” the terms “Common Stock” and “Common Equity” will be deemed to mean the Common Equity, if any, forming part of such Reference Property; (3) for purposes of the definition of “Record Date,” the term “Common Stock” will be deemed to refer to any class of equity securities forming part of such Reference Property; (4) for purposes of Section 14.07, each reference to any number of shares of Common Stock in such Merger Event Section 14.07 (or in any related definitions) will instead be deemed to be a reference to the same number of Reference Property Units and (III5) the Daily VWAP shall will be calculated based on the value of a unit Reference Property Unit. Prior to or at the effective time of Reference Propertysuch Common Stock Change Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(k) providing for the aforementioned change in the conversion right of the Notes. If the Merger such Common Stock Change Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible Unit shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses (i) and (ii) of the immediately preceding sentence attributable to one share holders of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent Stock pursuant to such Common Stock Change Event (if excluding any amounts received pursuant to dissenters’ rights or pursuant to any arrangement not to issue or deliver a fractional portion of any security or other than the Trustee) in writing of the weighted average as soon as practicable after such determination is madeproperty). If the holders of the Common Stock receive only cash in such Merger Common Stock Change Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI. If, in the case of any Merger Change Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.07, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given to each Holder, at its address appearing on the Note Register provided for in the Indenture, within 30 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 and Section 11.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.,
Appears in 1 contract
Samples: Indenture (Encore Capital Group Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes in par value or from par value to no par value, or changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then then, at the Companyeffective time of the Merger Event, the Company or the successor or purchasing companyacquiring person, as the case may be, will execute with the Trustee and a supplemental indenture, without the consent of the Holders, a supplemental indenture providing that, that at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall will be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, will execute with the Trustee a supplemental indenture permitted under Section 10.01(j) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall or the successor or acquiring company, as the case may be, will continue to have the right to elect to determine the form of consideration to be paid or delivered, as the case may be, upon conversion in respect of the remainder, if any, of the Conversion Obligation in excess of the principal amount of the Notes being converted, in accordance with Section 11.02 and 14.02, (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall 14.02 will continue to be payable in cash, (IIC) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall 14.02 will instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (IIID) the Daily VWAP shall will be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall will be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall will refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holdersHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as reasonably practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall will be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall will satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such The supplemental indenture described in the second immediately preceding paragraph shall will provide for anti-dilution and other adjustments that shall be are as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, If the Reference Property in respect of any such Merger Event includes shares of stock, securities or other property or assets (including assets, other than cash or any combination thereof) and/or cash equivalents, of a Person other than the Company or the successor or purchasing corporation, as the case may be, in such Merger Event and such other company, if an affiliate of the Company (or, if the Company does not survive the Merger Event, then an affiliate of the successor or purchasing company) is party to the transaction, such other company will also execute such supplemental indenture, and such supplemental indenture shall also be executed by such other Person and shall will contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall Company will in good faith reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are reasonably consistent with this Section 14.07 and in compliance with Section 14.10. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than a change to par value, or from par value to no par value, or changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then then, at the Companyeffective time of the Merger Event, the Company or the successor or purchasing acquiring company, as the case may be, will shall execute with the Trustee and a supplemental indenture permitted by Section 10.01(j), without the consent of the Holders, a supplemental indenture providing that, that at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event; provided, however, that at . At and after the effective time of the Merger Event (A) the Company or the successor or acquiring company, as the case may be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will shall notify holdersHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as reasonably practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such If the Reference Property in respect of any such Merger Event includes, in whole or in part, shares of Common Equity, the supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14 with respect to the portion of Reference Property constituting such Common Equity. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including other than cash or any combination thereofand/or cash equivalents) of a Person other than the Company or the successor or purchasing corporationacquiring company, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person Person, if an Affiliate of the Company or the successor or acquiring company, and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof Company shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15. The Company shall not become party to any such Merger Event unless its terms are consistent with this Section 14.07.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
(e) Upon the consummation of any Merger Event, references to “Common Stock” shall be deemed to refer to any Reference Property that constitutes capital stock after giving effect to such Merger Event.
Appears in 1 contract
Samples: Indenture (Rapid7, Inc.)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” ”, with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(f) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form number of consideration to be paid or delivered, as the case may be, upon conversion shares of Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash Common Stock otherwise deliverable upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference PropertyEvent. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder shareholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or election, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will shall notify holdersHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including to the extent required by the Board of Directors and practicable the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event If the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of the Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Samples: Indenture (Photronics Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case event of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),;
(ii) any a consolidation, merger merger, combination, binding share exchange or combination similar transaction involving the Company,;
(iii) any a sale, assignment, conveyance, transfer, lease or other transfer disposition to a third party another Person of the consolidated assets of the Company and the Company’s Subsidiaries property and assets as an entirety or substantially as an entirety, ; or
(iv) any statutory share exchangea liquidation or dissolution of the Company, in each case, as a result in which holders of which the outstanding Common Stock would be converted intoare entitled to receive cash, securities or exchanged for, stock, other securities, other property or assets for their shares of Common Stock (including cash or any combination thereof) (“Reference Property” and any such eventtransaction, a “Merger Share Exchange Event”), then the Company, Company or the successor or purchasing companycompany , as the case may be, will shall execute with the Trustee and without the consent of the Holders, a supplemental indenture permitted under Section 10.01(g), providing that, at and after the effective time of such Merger Share Exchange Event, the right to convert Holders of each $1,000 principal amount of Notes shall be changed into a right entitled to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Share Exchange Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a “unit of Reference Property”) upon such Share Exchange Event. If the Merger Notes become convertible into Reference Property pursuant to this Section 14.05, the Company shall notify the Trustee and the Holders and issue a press release containing the relevant information (and make the press release available on the Company’s website). Throughout this Article 14, if the Common Stock has been replaced by Reference Property in accordance with this Section 14.05 as a result of any Share Exchange Event, references to the Common Stock are intended to refer to such Reference Property, subject to the provisions of the supplemental indenture described in this paragraph. If the Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form because the holders of stockholder election)the Common Stock have the right to elect the type of consideration they will receive, then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will shall notify holdersHolders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the such weighted average as soon as practicable after such determination is made. If the holders of Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Share Exchange Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes Notes, including the provisions providing for the repurchase rights set forth in Article 15, as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.05, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail give notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given to each Holder, at its address appearing on the Note Register provided for in the Indentureaccordance with Section 19.03, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Share Exchange Event unless its terms are consistent with this Section 14.05. None of the foregoing provisions shall affect the right of a holder of Notes Holder to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Share Exchange Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Share Exchange Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing that, at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event; provided, however, that at and after the effective time of the Merger Event the Conversion Obligation shall be calculated and settled in accordance with Section 13.02 such that (A) the amount otherwise payable in cash upon conversion of the Notes as set forth under Section 13.02 shall continue to be payable in cash, (B) the Company shall continue to have the right to elect to determine the form of consideration to be paid or delivered, as the case may be, upon conversion in respect of the remainder, if any, of the Conversion Obligation in excess of the principal amount of the Notes in accordance with being converted as set forth under Section 11.02 and 13.02, (BC) (I) any amount payable in cash the number of shares of Common Stock, if any, otherwise deliverable upon conversion of the Notes in accordance with Section 11.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 13.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (IIID) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased pursuant to Section 11.0313.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XIXIII. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XIIXIV.
(b) In the event the Company shall execute a supplemental indenture pursuant to subsection (a) of this Section 11.0713.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given mailed to each Holder, at its address appearing on the Note Register provided for in the this Indenture, within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are consistent with this Section 13.07. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash up to the aggregate principal amount of such Notes and cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, in respect of the remainder, if any, of the Conversion Obligation in excess of the aggregate principal amount of such Notes as set forth in Section 11.01 13.01 and Section 11.02 13.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Samples: Indenture (Infinera Corp)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger merger, combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Share Exchange Event”), then the Company, Company or the successor or purchasing companyPerson, as the case may be, will shall execute with the Trustee and without the consent of the Holders, Holders a supplemental indenture providing that, at and after the effective time of such Merger Share Exchange Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Share Exchange Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Share Exchange Event, and, prior to or at the effective time of such Share Exchange Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(i) providing for such change in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Share Exchange Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 11.02 14.02 and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Merger Share Exchange Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Share Exchange Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Share Exchange Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Share Exchange Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Share Exchange Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of such weighted average as soon as practicable after such determination is made. Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14. If, in the case of any Merger Share Exchange Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Share Exchange Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Share Exchange Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Share Exchange Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Share Exchange Events.
Appears in 1 contract
Samples: Indenture (Zynga Inc)
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock (other than changes any recapitalization, reclassification or change resulting from a subdivision or combination),
(ii) any consolidation, merger or combination involving the Company,Reference Entity, 103
(iii) any sale, lease or other transfer to a third party of all or substantially all of the consolidated assets of the Company Reference Entity and the CompanyReference Entity’s Subsidiaries substantially as an entirety, or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) ), other than any transaction that constitutes a Spin-Off, a Split-Off or a Share Election Merger (any such event, a “Merger Event”), then the Company, or the successor or purchasing company, as the case may be, will execute with the Trustee and without the consent of the Holders, a supplemental indenture providing thatthen, at and after the effective time of such Merger Event, the right to convert exchange each $1,000 principal amount of Notes shall be changed into a right to convert or exchange such principal amount of Notes into or for, respectively, the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Exchange Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, and the Reference Entity shall execute with the Trustee a supplemental indenture permitted under Section 10.01(g) providing for such change in the right to exchange each $1,000 principal amount of Notes; provided, however, that at and after the effective time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion or exchange of Notes in accordance with Section 11.02 Section 14.02 and (B) (I) any amount payable in cash upon conversion or exchange of the Notes in accordance with Section 11.02 Section 14.02 shall continue to be payable in cash, (II) any shares of Common Stock that the Company would have been required to deliver upon conversion or exchange of the Notes in accordance with Section 11.02 Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received been entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. For the avoidance of doubt, as of the Supplemental Indenture Effective Date, (x) the Reference Property for all purposes hereunder shall be Common Stock and (y) the unit of Reference Property for all purposes hereunder shall be one share of Common Stock, in each case, subject to further modification pursuant to Section 11.05, Section 14.04 and this Section 14.07. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible convertible, or for which the Notes will be exchangeable, shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (iiy) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur exchanges for which the relevant Exchange Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion exchange of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Exchange Rate in effect on the Conversion Exchange Date (as may be increased by any Additional Shares pursuant to Section 11.03Section 14.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Exchange Obligation by paying cash to converting exchanging Holders on no later than the second Business Day immediately following the relevant Conversion Exchange Date. The Company shall notify Holders, the Trustee and the Exchange Agent (if other than the Trustee) of such weighted average as soon as practicable after such determination is made. 104 Such supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XIArticle 14. If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Reference Entity or the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Company’s Board of Directors or a committee thereof shall reasonably consider necessary by reason of the foregoing, including the provisions providing for the purchase repurchase rights set forth in Article XIIArticle 15.
(b) In the event When the Company shall and the Reference Entity execute a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07(a), the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) Neither the Company nor the Reference Entity shall consummate any Merger Event unless the consummation of such Merger Event occurs in accordance with this Section 14.07. None of the foregoing provisions shall affect the right of a holder Holder of Notes to convert exchange its Notes into for cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 Section 14.01 and Section 11.02 Section 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section 14.07 shall similarly apply to successive Merger Events.
Appears in 1 contract
Effect of Recapitalizations, Reclassifications and Changes of the Common Stock. (a) In the case of:
(i) any recapitalization, reclassification or change of the Common Stock Stock, (other than (x) changes resulting from a subdivision or combinationcombination of the Common Stock, (y) a change only in par value or from par value to no par value or no par value to par value or (z) stock splits and stock combinations that do not involve the issuance of any other series or class of securities),
(ii) any consolidation, merger combination or combination similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially as an entirety, entirety or
(iv) any statutory share exchange, in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”)) then, then at the Companyeffective time of the Merger Event, the Company or the successor or purchasing companyacquiring person, as the case may be, will shall execute with the Trustee and a supplemental indenture, without the consent of the Holders, a supplemental indenture providing that, that at and after the effective time of such Merger Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such Merger Event; provided, however, that at and after the effective time of the Merger Event (A) the Company or the successor or acquiring company, as the case may be, shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion in respect of the remainder, if any, of the Conversion Obligation in excess of the principal amount of the Notes being converted, in accordance with Section 11.02 and 14.02, (B) (I) any amount payable in cash upon conversion of the Notes in accordance with Section 11.02 14.02 shall continue to be payable in cash, (IIC) any shares of Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 11.02 14.02 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have received in such Merger Event and (IIID) the Daily VWAP shall be calculated based on the value of a unit of Reference Property. If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration actually received by the holders of Common Stock that affirmatively make such an election or Stock, and (ii) if no holders of the Common Stock affirmatively make such an election, the types and amounts of consideration actually received by such holders. The unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clauses clause (i) and (ii) of the immediately preceding sentence attributable to one share of Common Stock. The Company will notify holders, the Trustee and the Conversion Agent (if other than the Trustee) in writing of the weighted average as soon as practicable after such determination is made. If the holders of the Common Stock receive only cash in such Merger Event, then for all conversions that occur for which the relevant Conversion Date occurs after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional Shares pursuant to Section 11.0314.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the second Business Day immediately following the relevant Conversion Date. Such The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) of such weighted average as soon as reasonably practicable after such determination is made. The supplemental indenture described in the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article XI14 with respect to the portion of Reference Property consisting of such Common Equity or securities convertible into or exchangeable for shares of Common Equity. If, in the case of any Merger Event, If the Reference Property in respect of any such Merger Event includes shares of stock, securities or other property or assets (including cash or any combination thereof) assets, of a Person other than the Company or the successor or purchasing corporation, as the case may be, in such Merger Event, then such other company shall also execute such supplemental indenture, and such supplemental indenture shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Company’s Board of Directors Directors, or a designated committee thereof shall thereof, reasonably consider considers necessary by reason of the foregoing, including the provisions providing for the purchase rights set forth in Article XII15.
(b) In the event When the Company shall execute executes a supplemental indenture pursuant to subsection (a) of this Section 11.0714.07, the Company shall promptly file with the Trustee an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with, and shall promptly mail deliver or cause to be delivered notice thereof to all Holders. The Company shall cause notice of the execution of such supplemental indenture to be given delivered to each Holder, at its address appearing on the Note Register provided for in the Indenture, Holder within 30 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
(c) The Company shall not become a party to any Merger Event unless its terms are reasonably consistent with this Section 14.07 and in compliance with Section 14.10. None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable, as set forth in Section 11.01 14.01 and Section 11.02 14.02 prior to the effective date of such Merger Event.
(d) The above provisions of this Section shall similarly apply to successive Merger Events.
Appears in 1 contract
Samples: Indenture (Jetblue Airways Corp)
