Reorganization Events. (a) In the event of: (i) any consolidation or merger of the Company with or into another Person (other than a merger or consolidation in which the Company is the continuing or surviving corporation and in which the Class A Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Company or another Person); (ii) any sale, transfer, lease or conveyance to another Person of all or substantially all of the property and assets of the Company; (iii) any reclassification of Class A Common Stock into securities, including securities other than Class A Common Stock; or (iv) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition), in each case, as a result of which the Class A Common Stock would be converted into, or exchanged for, securities, cash or property (each, a “Reorganization Event”), each Purchase Contract outstanding immediately prior to such Reorganization Event shall, without the consent of Holders, become a contract to purchase the kind of securities, cash and other property (the “Exchange Property”) that a holder of Class A Common Stock would have been entitled to receive immediately prior to such Reorganization Event and, 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 Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv) providing for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type and amount of Exchange Property in the case of any Reorganization Event that causes the Class A 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 shareholder election) will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Class A Common Stock that affirmatively make such an election (or if no holders of Class A Common Stock make such an election, the types and amounts of consideration actually received by the holders of Class A Common Stock). The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after such determination is made. The number of units of Exchange Property the Company shall deliver for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect of such redemption) following the effective date of such Reorganization Event shall be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on the Fixed Settlement Rate then in effect on the applicable Determination Date, or such other settlement rates or redemption rates as provided herein (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is prior to the Determination Date). Each Fixed Settlement Rate shall be determined based upon the Applicable Market Value of a unit of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization Event. For purposes of this Section 5.02(a), “Applicable Market Value” shall be deemed to refer to the Applicable Market Value of the Exchange Property and such value shall be determined (A) with respect to any publicly traded securities that comprises all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes of this Section 5.02(a), the term “Closing Price” shall be determined by reference to the definition of Closing Price as if references therein to Class A Common Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any Reorganization Event, the Exchange 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 Person, as the case may be, in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing. (b) In the event the Company shall execute a supplemental agreement pursuant to Section 5.02(a), the Company shall promptly file with the Purchase Contract Agent an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Exchange Property after any such 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 (or any successor) shall, within 20 days of the occurrence of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a), provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cash, securities or other property that constitute the Exchange Property and of the execution of such supplemental agreement, if applicable. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement. (c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such Reorganization Event. (d) The above provisions of this Section 5.02(a) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any shares of Capital Stock of the Company (or any successor) received by the holders of Class A Common Stock in any such Reorganization Event. (e) In connection with any Reorganization 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 Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization 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 Reorganization Event (such quotient rounded down to the nearest cent). (ii) In the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent). (iii) For the avoidance of doubt, in the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to zero.
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Reorganization Events. (a) In the event of:
(i) of any consolidation or merger of the Company with or into another Person (other than a merger or consolidation in which the Company is the continuing or surviving corporation and in which the Class A Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for cashconsolidation, securities merger, amalgamation, winding up into, conversion, share exchange or other property of the Company reorganization event or another Person);
(ii) any sale, assignment, conveyance, transfer, lease or conveyance to another Person other disposition of all property or substantially all of the property and assets of the Company;
(iii) any reclassification of Class A Common Stock into securities, including securities other than Class A Common Stock; or
(iv) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition)assets, in each case, as a result of pursuant to which the Class A Common Stock would be is converted into, into or exchanged for, for the right to receive other securities, cash or other property (each, a “Reorganization Event”), then, at and after the effective time of the Reorganization Event:
(i) each Purchase Contract then outstanding immediately prior to such Reorganization Event shall, without the consent of the Holders, become a contract Purchase Contract to purchase the kind and amount of securities, cash and or other property that a holder of Common Stock would have received in such Reorganization Event (the “Exchange Property”) ” with each “unit of Exchange Property” being the kind and amount of Exchange Property that a holder of Class A one share of Common Stock would have been entitled to receive immediately prior to received in such Reorganization Event andEvent); provided that, prior in the event holders of Common Stock have the opportunity to or at elect the effective time form of consideration to be received in such Reorganization Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv) providing for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type and amount of Exchange Property in the case of any Reorganization Event that causes the Class A 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 shareholder election) will shall be deemed to be the weighted average of the types kinds and amounts of consideration received by the holders of Class A Common Stock that affirmatively make such an election (or or, if no holders of Class A Common Stock make affirmatively makes such an election, the types kinds and amounts of consideration actually received by the holders of Class A Common Stock). The ; provided further, that the Company shall notify Holders of the Purchase Contract Agent in writing composition of such weighted average the Exchange Property as soon as practicable after such determination is made. The ; and
(ii) the number of units of Exchange Property the Company shall deliver for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect of such redemption) following the effective date of such Reorganization Event shall will be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on by the Fixed Settlement Rate Rates then in effect on the applicable Determination Date, or such other settlement rates or redemption rates as provided herein Settlement Date (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is Record Date prior to the Determination Date). Each Fixed Settlement Rate shall will be determined based upon using the Applicable Market Value of a unit of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization Event. For purposes of this Section 5.02(a)Property, “Applicable Market Value” shall be deemed to refer to the Applicable Market Value of the Exchange Property and such value shall will be determined (A) with respect to to:
(a) any publicly traded securities that comprises compose all or part of the Exchange Property, based on the Closing Price Daily VWAP of such securities, ;
(Bb) in the case of any cash that comprises composes all or part of the Exchange Property, based on the amount of such cash and cash; and
(Cc) in the case of any other property that comprises composes all or part of the Exchange Property, based on the value of such property, property as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes In the event of a Reorganization Event where the Company is not the Successor Company, such Successor Company formed by such Reorganization Event shall execute and deliver to the Purchase Contract Agent an agreement supplemental hereto providing that each Holder of an Outstanding Purchase Contract (whether or not included in a Unit) shall have the rights provided by this Section 5.02(a), the term “Closing Price” shall be determined by reference to the definition of Closing Price as if references therein to Class A Common Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property5.02. Such supplemental agreement described in the second immediately preceding paragraph shall provide for adjustments that which, for events subsequent to the effective date of such Reorganization Event, shall be as nearly equivalent as is possible may be practicable to the adjustments provided for in this Article 5. If, in the case of Section 5.01 (with respect to any Reorganization Event, the Exchange Property includes shares consisting of stock, securities or other property or assets (including cash or any combination thereofpublicly traded common equity securities) of a Person other than the successor or purchasing Person, as the case may be, in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental agreement pursuant to this Section 5.02(a), the Company shall promptly file with the Purchase Contract Agent an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Exchange Property after any such 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 Holders5.02. The Company (or any successor) shall, within 20 days of the occurrence of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a), provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cash, securities or other property that constitute the Exchange Property and of the execution of such supplemental agreement, if applicable. Failure to deliver such notice shall not affect the operation above provisions of this Section 5.02 or the legality or validity of any such supplemental agreement.
(c) shall similarly apply to successive Reorganization Events. The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such Reorganization Event.
(d) The above provisions of this Section 5.02(a) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any shares of Capital Stock of the Company (or any successor) received by the holders of Class A Common Stock in any such Reorganization Event.
(e) In connection with any Reorganization 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 Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization 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 Reorganization Event (such quotient rounded down to the nearest cent).
(ii) In the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to zero.
Appears in 1 contract
Reorganization Events. (a) In the event of:
(i) any consolidation or merger of the Company with or into another Person (other than a merger or consolidation in which the Company is the continuing or surviving corporation and in which the Class A Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Company or another Person);
(ii) any sale, transfer, lease or conveyance to another Person of all or substantially all of the property and assets of the Company;
(iii) any reclassification of Class A Common Stock into securities, including securities other than Class A Common Stock; or
(iv) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition), ; in each case, as a result of which the Class A Common Stock would be converted into, or exchanged for, securities, cash or other property (each, a “Reorganization Event”), each Purchase Contract outstanding immediately prior to such Reorganization Event shall, without the consent of Holders, become a contract to purchase the kind of securities, cash and and/or other property (the “Exchange Property”) that a holder of Class A Common Stock would have been entitled to receive immediately prior to such Reorganization Event and, 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 Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv) providing amending this Agreement and the Purchase Contracts to provide for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type and amount of Exchange Property in the case of any Reorganization Event that causes the Class A 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 shareholder election) will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Class A Common Stock that affirmatively make such an election (or if no holders of Class A Common Stock make such an election, the types and amounts of consideration actually received by the holders of Class A Common Stock). The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after such determination is made. The number of units of Exchange Property the Company shall deliver for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect of such redemptiona Merger Termination Redemption) following the effective date of such Reorganization Event shall be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on the Fixed Settlement Rate Rates then in effect on the applicable Determination Date, or such other settlement rates or redemption rates as provided herein (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is prior to the close of business on the Determination Date). Each Fixed Settlement Rate shall be determined based upon the Applicable Market Value of a unit of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization Event. For purposes of this Section 5.02(a), “Applicable Market Value” shall be deemed to refer to the Applicable Market Value of the Exchange Property and such value shall be determined (A) with respect to any publicly traded securities that comprises all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes of this Section 5.02(a), the term “Closing Price” shall be determined by reference to the definition of Closing Price as if references therein to Class A Common Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any Reorganization Event, the Exchange 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 Person, as the case may be, in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental agreement pursuant to Section 5.02(a), the Company shall promptly file with the Purchase Contract Agent an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Exchange Property after any such 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 (or any successor) shall, within 20 days of the occurrence of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a), provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cash, securities or other property that constitute the Exchange Property and of the execution of such supplemental agreement, if applicable. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such Reorganization Event.
(d) The above provisions of this Section 5.02(a) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any shares of Capital Stock of the Company (or any successor) received by the holders of Class A Common Stock in any such Reorganization Event.
(e) In connection with any Reorganization 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 Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization 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 Reorganization Event (such quotient rounded down to the nearest cent).
(ii) In the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to zero.
Appears in 1 contract
Samples: Purchase Contract Agreement (International Flavors & Fragrances Inc)
Reorganization Events. (a) In the event ofthat there occurs:
(i) any consolidation consolidation, merger or merger other business combination of the Company Corporation with or into another Person (other than a merger or consolidation in which the Company is the continuing or surviving corporation and in which the Class A Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Company or another Person);
(ii) any sale, transfer, lease or conveyance to another Person of all or substantially all of the property and assets of the CompanyCorporation;
(iii) any reclassification reclassification, recapitalization or reorganization of Class A Common Stock into securities, including securities other than Class A Common Stockthe Corporation; or
(iv) any statutory exchange of the outstanding shares of Common Stock for securities of the Company with another Person (other than in connection with a consolidation, merger or acquisitionother business combination), ; and in each case, as a result of which the Class A Common Stock would be converted into, or exchanged for, securities, cash or property (each, a “Reorganization Event”), each Purchase Contract outstanding immediately prior to such Reorganization Event shall, without the consent of Holders, become a contract to purchase the kind of securities, cash and other property (the “Exchange Property”) that a holder of Class A Common Stock would have been entitled to receive immediately prior to such Reorganization Event and, 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 Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv) providing for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type and amount of Exchange Property in the case of any Reorganization Event that causes the Class A 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 shareholder election) will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Class A the Common Stock that affirmatively make such an election (or if no holders of Class A Common Stock make such an election, the types and amounts of consideration actually received by the holders of Class A Common Stock). The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after such determination is made. The number of units of Exchange Property the Company shall deliver for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect of such redemption) following the effective date of such Reorganization Event shall be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on the Fixed Settlement Rate then in effect on the applicable Determination Date, or such other settlement rates or redemption rates as provided herein (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is prior to the Determination Date). Each Fixed Settlement Rate shall be determined based upon the Applicable Market Value of a unit of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization Event. For purposes of this Section 5.02(a), “Applicable Market Value” shall be deemed to refer to the Applicable Market Value of the Exchange Property and such value shall be determined (A) with respect to any publicly traded securities that comprises all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes of this Section 5.02(a), the term “Closing Price” shall be determined by reference to the definition of Closing Price as if references therein to Class A Common Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any Reorganization Event, the Exchange Property includes shares of receive stock, other securities or other property or assets (including cash or any combination thereof) with respect to or in exchange for the Common Stock (any such event or transaction, a “Reorganization Event”) each share of a Person Series A Preferred Stock outstanding immediately prior to such Reorganization Event shall, without notice to or consent of the Holder(s) and subject to Subdivision 11(e), become convertible (but, for the avoidance of doubt, shall not be automatically converted in connection with such Reorganization Event) into the kind of securities, cash and other property received in such Reorganization Event by the holders of the Common Stock (other than the successor counterparty to the Reorganization Event or purchasing Personan Affiliate of such counterparty) (such securities, as cash and other property, the case may be, in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing“Exchange Property”).
(b) In the event that holders of the Company shall execute a supplemental agreement pursuant shares of Common Stock have the opportunity to Section 5.02(a)elect the form of consideration to be received in such transaction, the Company consideration that the Holder(s) are entitled to receive upon conversion shall promptly file with be deemed to be the Purchase Contract Agent types and amounts of consideration received by a majority of the holders of the shares of Common Stock that did make an Officers’ Certificate briefly stating affirmative election.
(c) The above provisions of this Subdivision 11 shall similarly apply to successive Reorganization Events and the reasons therefor, provisions of Subdivision 10 shall apply to any shares of capital stock received by the kind or amount holders of cash, securities or property or asset that will comprise the Exchange Property after Common Stock in any such 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. .
(d) The Company Corporation (or any successor) shall, within 20 days of the occurrence consummation of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a)Event, provide written notice to the Purchase Contract Agent and Holders Holder(s) of such occurrence consummation of such event and of the kind and amount of the cash, securities or other property that constitute constitutes the Exchange Property and of the execution of such supplemental agreement, if applicableProperty. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such Reorganization Event.
(d) The above provisions of this Section 5.02(a) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any shares of Capital Stock of the Company (or any successor) received by the holders of Class A Common Stock in any such Reorganization EventSubdivision 11.
(e) In connection with The Corporation shall not enter into any agreement for a transaction constituting a Reorganization 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.Event unless:
(i) In such agreement provides for, or does not interfere with or prevent (as applicable), conversion of the case of a Reorganization Event in which Series A Preferred Stock into the Exchange Property in a manner that is consistent with and gives effect to this Subdivision 11; and
(determined, as appropriate, pursuant ii) to subsection (a) above and excluding any dissenters’ appraisal rights) the extent that the Corporation is composed entirely of shares of common stock (not the “Merger Common Stock”), the Dividend Threshold Amount at and after the effective time of surviving corporation in such Reorganization Event or will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of dissolved in connection with such Reorganization Event, divided by (y) proper provision shall be made in the number of shares of Merger Common Stock that a holder of one share of Common Stock would receive in agreements governing such Reorganization Event (such quotient rounded down to for the nearest cent).
(ii) In conversion of the case Series A Preferred Stock into stock of a Reorganization Event in which the Exchange 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 Person surviving such Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubtor, in the case of a Reorganization Event described in which Subdivision 11(a)(ii), an exchange of Series A Preferred Stock for the Exchange Property (determinedstock of the Person to whom the Corporation’s assets are conveyed or transferred, as appropriate, pursuant to subsection (a) above and excluding any dissenters’ appraisal rights) is composed entirely such stock of consideration other than shares of common stock, the Dividend Threshold Amount at and after the effective time of Person surviving such Reorganization Event will be or to whom the Corporation’s assets are conveyed or transferred shall have voting powers, preferences and relative, participating, optional or other special rights as nearly equal as possible to zerothose provided in this Certificate of Incorporation.
Appears in 1 contract
Samples: Merger Agreement (Xerox Corp)
Reorganization Events. (a) In the event of:
(i) any consolidation or merger of the Company with or into another Person (other than a merger or consolidation in which the Company is the continuing or surviving corporation and in which the Class A Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Company or another Person);
(ii) any sale, transfer, lease or conveyance to another Person of all or substantially all of the property and assets of the Company;
(iii) any reclassification of Class A Common Stock into securities, including securities other than Class A Common Stock; or
(iv) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition), ; in each case, as a result of which the Class A Common Stock would be converted into, or exchanged for, securities, cash or other property (each, a ““ Reorganization Event”), each Purchase Contract outstanding immediately prior to such Reorganization Event shall, without the consent of Holders, become a contract to purchase the kind of securities, cash and and/or other property (the “Exchange Property”) that a holder of Class A Common Stock would have been entitled to receive immediately prior to such Reorganization Event and, 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 Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv) providing amending this Agreement and the Purchase Contracts to provide for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type and amount of Exchange Property in the case of any Reorganization Event that causes the Class A 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 shareholder election) will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Class A Common Stock that affirmatively make such an election (or if no holders of Class A Common Stock make such an election, the types and amounts of consideration actually received by the holders of Class A Common Stock). The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after such determination is made. The number of units of Exchange Property the Company shall deliver for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect of such redemptiona Merger Termination Redemption) following the effective date of such Reorganization Event shall be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on the Fixed Settlement Rate Rates then in effect on the applicable Determination Date, or such other settlement rates or redemption rates as provided herein (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is prior to the close of business on the Determination Date). Each Fixed Settlement Rate shall be determined based upon the Applicable Market Value of a unit of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization Event. For purposes of this Section 5.02(a), “Applicable Market Value” shall be deemed to refer to the Applicable Market Value of the Exchange Property and such value shall be determined (A) with respect to any publicly traded securities that comprises all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes of this Section 5.02(a), the term “Closing Price” shall be determined by reference to the definition of Closing Price as if references therein to Class A Common Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any Reorganization Event, the Exchange 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 Person, as the case may be, in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental agreement pursuant to Section 5.02(a), the Company shall promptly file with the Purchase Contract Agent an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Exchange Property after any such 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 (or any successor) shall, within 20 days of the occurrence of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a), provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cash, securities or other property that constitute the Exchange Property and of the execution of such supplemental agreement, if applicable. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such Reorganization Event.
(d) The above provisions of this Section 5.02(a) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any shares of Capital Stock of the Company (or any successor) received by the holders of Class A Common Stock in any such Reorganization Event.
(e) In connection with any Reorganization 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 Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization 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 Reorganization Event (such quotient rounded down to the nearest cent).
(ii) In the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to zero.
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Reorganization Events. (a) In the event of:
(i) any consolidation or merger of the Company with or into another Person (other than a merger or consolidation in which the Company is the continuing or surviving corporation and in which the Class A Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Company or another Person);
(ii) any sale, transfer, lease or conveyance to another Person of all or substantially all of the property and assets of the Company;
(iii) any reclassification of Class A Common Stock into securities, securities including securities other than Class A Common Stock; or
(iv) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition), in each case, as a result of which the Class A Company’s Common Stock would be converted into, or exchanged for, securities, cash or property (each, a “Reorganization Event”), each Purchase Contract outstanding immediately prior to such Reorganization Event shall, without the consent of Holders, become a contract to purchase the kind of securities, cash and other property (the “Exchange Property”) that a holder of Class A Common Stock such Holder would have been entitled to receive if such Holder had settled its Purchase Contracts immediately prior to such Reorganization Event and, 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 Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv) providing for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type and amount of Exchange Property in the case of any Reorganization Event that causes the Class A Common Stock to be converted into, or exchanged for, into the right to receive more than a single type of consideration (determined based in part upon any form of shareholder election) will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Class A Common Stock that affirmatively make such an election (or if no holders of Class A Common Stock make such an election, the types and amounts of consideration actually received by the holders of Class A Common Stock). The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after such determination is made. The number of units of Exchange Property the Company shall deliver for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect of such redemption) following the effective date Effective Date of such Reorganization Event shall be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on the Fixed Settlement Rate then in effect on the applicable Determination Date, or such other settlement rates or redemption rates as provided herein Settlement Date (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is prior to the Determination Settlement Date). Each The Fixed Settlement Rate shall be determined based upon the Applicable Market Value of a unit of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization EventValue. For purposes of this Section 5.02(a5.01(e), “Applicable Market Value” shall be deemed to refer to the Applicable Market Value of the Exchange Property and such value shall be determined (A) with respect to any publicly traded securities that comprises all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes of this Section 5.02(a5.01(e), the term “Closing Price” shall be determined by reference deemed to refer to the definition closing sale price, last quoted bid price or mid-point of Closing Price the last bid and ask prices, as if references therein to Class A Common Stock were to such the case may be, of any publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a5.01(e), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in The above provisions of this Section 5.01(e) shall similarly apply to successive Reorganization Events and the second immediately preceding paragraph provisions of Section 5.01 shall provide for adjustments that shall be as nearly equivalent as is possible apply to the adjustments provided for in this Article 5. If, in the case of any Reorganization Event, the Exchange Property includes shares of stock, securities or other property or assets capital stock of the Company (including cash or any combination thereofsuccessor) received by the holders of a Person other than the successor or purchasing Person, as the case may be, Common Stock in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental agreement pursuant to Section 5.02(a), the Company shall promptly file with the Purchase Contract Agent an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Exchange Property after any such 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 (or any successor) shall, within 20 days of the occurrence of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a)Event, provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cash, securities or other property that constitute the Exchange Property and of the execution of such supplemental agreement, if applicableProperty. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such Reorganization Event.
(d) The above provisions of this Section 5.02(a) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any shares of Capital Stock of the Company (or any successor) received by the holders of Class A Common Stock in any such Reorganization Event.
(e) In connection with any Reorganization 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 Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization 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 Reorganization Event (such quotient rounded down to the nearest cent5.01(e).
(ii) In the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to zero.
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Reorganization Events. (a) In the event of:
(i) any consolidation or merger of the Company Corporation with or into another Person (other than a merger or consolidation in which the Company Corporation is the continuing or surviving corporation and in which the Class A Common Stock Shares outstanding immediately prior to the merger or consolidation is are not exchanged for cash, securities or other property of the Company Corporation or another Person);
(ii) any sale, transfer, lease or conveyance to another Person of all or substantially all of the property and assets of the CompanyCorporation;
(iii) any reclassification of Class A Common Stock Shares into securities, securities including securities other than Class A Common StockShares; or
(iv) any statutory exchange of securities of the Company Corporation with another Person (other than in connection with a merger or acquisition), in each case, as a result of which the Class A Common Stock Shares would be converted into, or exchanged for, securities, cash or other property (each, a “Reorganization Event”), each Purchase Contract share of Mandatory Convertible Preferred Stock outstanding immediately prior to such Reorganization Event shall, without the consent of the Holders, become a contract to purchase convertible into the kind of securities, cash and other property (the “Exchange Property”) that a holder of Class A Common Stock such Holder would have been entitled to receive if such Holder had converted its Mandatory Convertible Preferred Stock into Common Shares immediately prior to such Reorganization Event and(such securities, prior to or at cash and other property, the effective time “Exchange Property,” with each “Unit of Exchange Property” meaning the kind and amount of such Reorganization Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Purchase Contract Agent and the Trustee Exchange Property that a supplemental agreement permitted under Section 9.01(iv) providing for such change in the right Holder of one Common Share is entitled to settle the Purchase Contractsreceive). For purposes of the foregoing, the type and amount of Exchange Property in the case of any Reorganization Event that causes the Class A Common Stock to be converted into, or exchanged for, into the right to receive more than a single type of consideration (determined based in part upon any form of shareholder election) will shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Class A Common Stock Shares that affirmatively make such an election (or if no of all holders of Class A Common Stock make such Shares if none makes an election, the types and amounts of consideration actually received by the holders of Class A Common Stock). The Company Corporation shall notify Holders of the Purchase Contract Agent in writing of such weighted average as soon as practicable after such determination is made. The number of units Units of Exchange Property the Company shall deliver for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect share of such redemption) Mandatory Convertible Preferred Stock converted following the effective date of such Reorganization Event shall be equal determined as if references in Section 7, Section 8 and Section 9 to the number Common Shares were to Units of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on the Fixed Settlement Rate then in effect on the applicable Determination Date, or such other settlement rates or redemption rates as provided herein Exchange Property (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is prior to the Determination such Conversion Date, except as provided in Section 13(a)(vii), Section 13(c)(iii) and Section 13(c)(v)). Each Fixed Settlement For the purpose of determining which of clauses (i), (ii) and (iii) of Section 7(b) shall apply upon Mandatory Conversion, and for the purpose of calculating the Mandatory Conversion Rate if clause (ii) of Section 7(b) is applicable, the value of a Unit of Exchange Property shall be determined based upon in good faith by the Applicable Market Value Board of Directors (which determination will be final), except that if a unit Unit of Exchange Property includes common stock or American Depositary Receipts (“ADRs”) that are traded on a holder of one share of Class A Common Stock would have received in such Reorganization Event. For purposes of this Section 5.02(a)U.S. national securities exchange, “Applicable Market Value” shall be deemed to refer to the Applicable Market Value of the Exchange Property and such value shall be determined (A) with respect to any publicly traded securities that comprises all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such propertycommon stock or ADRs shall be the average over the 20 consecutive Trading Day period ending on, and including, the third Trading Day immediately preceding the Mandatory Conversion Date of the volume weighted average prices for such common stock or ADRs, as displayed on the applicable Bloomberg screen (as determined in good faith by the Board of Directors (which determination will be final)); or, if such price is not available, the average market value per share of such common stock or ADRs over such period as determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained by the Company Corporation for this purpose. For purposes The above provisions of this Section 5.02(a), 13(e) shall similarly apply to successive Reorganization Events and the term “Closing Price” provisions of Section 13 shall be determined by reference apply to the definition any shares of Closing Price as if references therein to Class A Common Stock were to such publicly traded securities that comprise all capital stock or part ADRs of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any Reorganization Event, the Exchange Property includes shares of stock, securities or other property or assets Corporation (including cash or any combination thereofsuccessor thereto) received by the holders of a Person other than the successor or purchasing Person, as the case may be, Common Shares in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental agreement pursuant to Section 5.02(a), the Company shall promptly file with the Purchase Contract Agent an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Exchange Property after any such 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 Corporation (or any successorsuccessor thereto) shall, as soon as reasonably practicable (but in any event within 20 days of calendar days) after the occurrence of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a)Event, provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cash, securities or other property that constitute the Exchange Property and of the execution of such supplemental agreement, if applicableProperty. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such Reorganization Event.
(d) The above provisions of this Section 5.02(a) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any shares of Capital Stock of the Company (or any successor) received by the holders of Class A Common Stock in any such Reorganization Event.
(e) In connection with any Reorganization 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 Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization 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 Reorganization Event (such quotient rounded down to the nearest cent13(e).
(ii) In the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to zero.
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Samples: Deposit Agreement (Alcoa Inc)
Reorganization Events. (a) In the event ofof and only if such events are not a Fundamental Change:
(i) any consolidation or merger of the Company Corporation with or into another Person (other than a merger or consolidation Person, in each case pursuant to which the Company is the continuing or surviving corporation and in which the Class A Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for will be converted into cash, securities or other property of the Company Corporation or another Person);
(ii) any sale, transfer, lease or conveyance to another Person of all or substantially all of the property and assets of the CompanyCorporation, in each case pursuant to which the Common Stock will be converted into cash, securities or other property of the Corporation or another Person;
(iii) any reclassification of Class A the Common Stock including into securities, including securities other than Class A the Common Stock; or
(iv) any statutory exchange of the outstanding shares of Common Stock for securities of the Company with another Person (other than in connection with a merger or acquisition), ; (any such event specified in each case, as a result of which the Class A Common Stock would be converted into, or exchanged for, securities, cash or property (eachthis Section 11(a), a “Reorganization Event”), ; each Purchase Contract share of Senior Preferred Stock outstanding immediately prior to such Reorganization Event shallshall remain outstanding but shall become convertible, without when and if convertible pursuant to the consent of Holdersterms hereof, become a contract to purchase into the kind of securities, cash and other property receivable in such Reorganization Event by the holder (excluding the counterparty to the Reorganization Event or an affiliate of such counterparty) of that number of shares of Common Stock (on an As-Converted Basis) into which the share of Senior Preferred Stock would then be convertible assuming receipt of all Stockholder Approvals (such securities, cash and other property, the “Exchange Property”).
(b) In the event that a holder holders of Class A the shares of Common Stock would have been entitled the opportunity to receive immediately prior elect the form of consideration to such Reorganization Event and, prior to or at the effective time of be received in such Reorganization Event, the Company or consideration that the successor or purchasing Person, as the case may be, shall execute with the Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv) providing for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type and amount of Exchange Property in the case of any Reorganization Event that causes the Class A Common Stock to be converted into, or exchanged for, the right Holders are entitled to receive more than a single type of consideration (determined based in part upon any form of shareholder election) will shall be deemed to be the weighted average of the types and amounts of consideration received by the majority of the holders of Class A the shares of Common Stock that affirmatively make such an election (or if no holders of Class A Common Stock make such an election, the types and amounts of consideration actually received by the holders of Class A Common Stock). The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after such determination is made. The number of units amount of Exchange Property the Company shall deliver for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash receivable upon conversion of any Senior Preferred Stock in respect of such redemption) following the effective date of such Reorganization Event shall be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on the Fixed Settlement Rate then in effect on the applicable Determination Date, or such other settlement rates or redemption rates as provided herein (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is prior to the Determination Date). Each Fixed Settlement Rate accordance with Section 8 shall be determined based upon the Applicable Market Value of a unit of Exchange Property that a holder of one share of Class A Common Stock would have received Conversion Price in such Reorganization Event. For purposes effect on the Mandatory Conversion Date.
(c) The above provisions of this Section 5.02(a), “Applicable Market Value” 11 shall be deemed similarly apply to refer successive Reorganization Events and the provisions of Section 10 shall apply to the Applicable Market Value any shares of capital stock of the Exchange Property and such value shall be determined Corporation (Aor any successor) with respect to any publicly traded securities that comprises all or part received by the holders of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes of this Section 5.02(a), the term “Closing Price” shall be determined by reference to the definition of Closing Price as if references therein to Class A Common Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Series B Preferred Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any Reorganization Event, the Exchange 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 Person, as the case may be, in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental agreement pursuant to Section 5.02(a), the Company shall promptly file with the Purchase Contract Agent an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Exchange Property after any such 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. .
(d) The Company Corporation (or any successor) shall, within 20 days of the occurrence of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a)Event, provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cash, securities or other property that constitute constitutes the Exchange Property and of the execution of such supplemental agreement, if applicableProperty. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such Reorganization Event.
(d) The above provisions of this Section 5.02(a) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any shares of Capital Stock of the Company (or any successor) received by the holders of Class A Common Stock in any such Reorganization Event11.
(e) In connection with any Reorganization EventNotwithstanding anything to the contrary in this Section 11 or otherwise in this Certificate of Designations, the Dividend Threshold Amount Corporation shall be subject to adjustment as described in clause not enter into any agreement for a transaction constituting a Fundamental Change unless such agreement (i)) entitles Holders to receive, clause the securities, cash and other property that such Holders would have been entitled to receive upon a liquidation, dissolution or winding up of the Corporation pursuant to Section 5, or (ii) in each case, subject to obtaining the required consent specified in Section 5(c), (1) the Senior Preferred Stock remains outstanding or, in the case of any such merger or clause consolidation with respect to which the Corporation is not the surviving or resulting entity, is converted into or exchanged for preference securities of the surviving or resulting entity or its ultimate parent, that is an entity organized and existing under the laws of the United States of America, any state thereof or the District of Columbia, and (iii2) belowsuch Senior Preferred Stock remaining outstanding or such preference securities, as the case may be.
(i) In the case of , have such rights, preferences, privileges and voting powers, taken as a Reorganization Event in which the Exchange Property (determinedwhole, 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior are not materially less favorable to the effective time Holders thereof than the rights, preferences, privileges and voting powers of such Reorganization 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 Reorganization Event (such quotient rounded down to the nearest cent).
(ii) In the case of a Reorganization Event in which the Exchange Property (determined, as appropriate, pursuant to subsection (a) above and excluding any dissenters’ appraisal rights) is composed in part of shares of Merger Common Senior Preferred Stock, the Dividend Threshold Amount at and after the effective time of such Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) taken as a whole. For the avoidance of doubt, nothing herein shall prohibit the Corporation from entering into or consummating a transaction constituting a Fundamental Change; provided, that the Senior Preferred Stock is treated as set forth in the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to zeropreceding sentence.
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Reorganization Events. (a) In the event of:
(i1) any consolidation or merger of the Company Corporation with or into another Person (Person, or other than a merger or consolidation similar transaction, in each case pursuant to which the Company is the continuing or surviving corporation and in which the Class A Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for will be converted into cash, securities or other property of the Company Corporation or another Person);
(ii2) any sale, transfer, lease or conveyance to another Person of all or substantially all of the property and assets of the CompanyCorporation, in each case pursuant to which the Common Stock will be converted into cash, securities or other property of the Corporation or another Person;
(iii3) any reclassification of Class A the Common Stock into securities, securities including securities other than Class A the Common Stock; or
(iv) any statutory exchange of securities of the Company with another Person (other than such event specified in connection with a merger or acquisitionthis Section 11(a), in each case, as a result of which the Class A Common Stock would be converted into, or exchanged for, securities, cash or property (each, a “Reorganization Event”), ; each Purchase Contract share of Series B Preferred Stock outstanding immediately prior to such Reorganization Event shall, without the consent of Holders, shall remain outstanding but shall become a contract to purchase convertible into the kind of securities, cash and other property receivable in such Reorganization Event by the holder (excluding the counterparty to the Reorganization Event or an Affiliate of such counterparty) of that number of shares of Common Stock into which the share of Series B Preferred Stock would then be convertible (such securities, cash and other property, the “Exchange Property”).
(b) In the event that a holder holders of Class A the shares of Common Stock would have been entitled the opportunity to receive immediately prior elect the form of consideration to such Reorganization Event and, prior to or at be received in the effective time of such Reorganization Event, the Company or consideration that the successor or purchasing Person, as the case may be, shall execute with the Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv) providing for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type and amount of Exchange Property in the case of any Reorganization Event that causes the Class A Common Stock to be converted into, or exchanged for, the right Holders are entitled to receive more than a single type of consideration (determined based in part upon any form of shareholder election) will shall be deemed to be the weighted average of the types and amounts of consideration received by the majority of the holders of Class A the shares of Common Stock that affirmatively make such an election (or if no holders of Class A Common Stock make such an election, the types and amounts of consideration actually received by the holders of Class A Common Stock). The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after such determination is made. The number of units amount of Exchange Property the Company shall deliver for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash receivable upon conversion of any Series B Preferred Stock in respect of such redemption) following the effective date of such Reorganization Event shall be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on the Fixed Settlement Rate then in effect on the applicable Determination Date, or such other settlement rates or redemption rates as provided herein (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is prior to the Determination Date). Each Fixed Settlement Rate accordance with Section 8 shall be determined based upon the Applicable Market Value Conversion Price in effect on the date of a unit consummation of Exchange Property that a holder of one share of Class A Common Stock would have received in such the Reorganization Event. For purposes .
(c) The above provisions of this Section 5.02(a), “Applicable Market Value” 11 shall be deemed similarly apply to refer successive Reorganization Events and the provisions of Section 10 shall apply to the Applicable Market Value any shares of Capital Stock of the Exchange Property and such value shall be determined Corporation (Aor any successor) with respect to any publicly traded securities that comprises all or part received by the holders of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes of this Section 5.02(a), the term “Closing Price” shall be determined by reference to the definition of Closing Price as if references therein to Class A Common Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any Reorganization Event, the Exchange 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 Person, as the case may be, in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental agreement pursuant to Section 5.02(a), the Company shall promptly file with the Purchase Contract Agent an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Exchange Property after any such 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. .
(d) The Company Corporation (or any successor) shall, within 20 twenty (20) days of the occurrence of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a)Event, provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cash, securities or other property that constitute constitutes the Exchange Property and of the execution of such supplemental agreement, if applicableProperty. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such Reorganization Event.
(d) The above provisions of this Section 5.02(a) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any shares of Capital Stock of the Company (or any successor) received by the holders of Class A Common Stock in any such Reorganization Event11.
(e) In connection with any Reorganization EventNotwithstanding anything to the contrary in this Section 11 or otherwise in this Certificate of Designations, the Dividend Threshold Amount Corporation shall be subject not enter into any agreement for a transaction constituting a Fundamental Change unless such agreement (i) entitles Holders to adjustment receive, on an as-converted basis, the securities, cash and other property receivable in such transaction by a holder of shares of Common Stock that was not the counterparty to such transaction or an Affiliate of such other party as described in clause (i), clause Section 11(a) or (ii) or clause (iii) below, as the case may be.
(i) In the case provides that each share of a Reorganization Event in which the Exchange 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 Reorganization Event will Series B Preferred Stock shall be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, divided by (y) converted into the number of shares of Merger Common Stock that a holder of one share of Common Stock would receive as provided in such Reorganization Event (such quotient rounded down to the nearest centSection 8(c).
(ii) In the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) . For the avoidance of doubt, nothing herein shall prohibit the Corporation from entering into or consummating a transaction constituting a Fundamental Change provided that the Series B Preferred Stock is treated as set forth in the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to zeropreceding sentence.
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Reorganization Events. (a) In the event of:
(i) any consolidation or merger of the Company with or into another Person or consolidation with any other entity (other than a merger or consolidation in which the Company is the continuing or surviving corporation and in which the Class A Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Company or another Person);
(ii) any sale, assignment, transfer, lease or conveyance to another Person of all or substantially all of the property properties and assets of the CompanyCompany to any other Person or entity;
(iii) any reclassification of Class A Common Stock into securities, securities including securities other than Class A Common Stock; or
(iv) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition), in each case, as a result of which the Class A Common Stock would be converted into, or exchanged for, securities, cash or and/or other property (each, a “Reorganization Event”), then at and after the effective time of the Reorganization Event, each Purchase Contract outstanding immediately prior to such Reorganization Event shall, without the consent of Holders, become a contract to purchase the kind and amount of securities, cash and and/or other property (the “Exchange Property”) that a holder of Class A Common Stock would have been entitled to receive immediately prior to in connection with such Reorganization Event (such securities, cash and other property, the “Exchange Property” with each “Unit of Exchange Property” being the kind and amount of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization Event) and, 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 Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv) providing for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type and amount of Exchange Property in the case of any Reorganization Event that causes the Class A 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 shareholder election) will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Class A Common Stock that affirmatively make such an election (or if no holders of Class A Common Stock make such an election, the types and amounts of consideration actually received by the holders of Class A Common Stock). The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after such determination is made. The number of units Units of Exchange Property that the Company shall deliver cause to be delivered for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect of such redemptionredemption pursuant to Section 4.09(c)(ii)) following the effective date of such Reorganization Event shall be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on by the Fixed Settlement Rate, the Early Mandatory Settlement Rate, the Early Settlement Rate, the Fundamental Change Early Settlement Rate then in effect on or the applicable Determination DateMerger Redemption Rate, or such other settlement rates or redemption rates as provided herein the case may be (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is Record Date prior to the Determination Datedate such Purchase Contracts are actually settled). Each Fixed Settlement Rate shall be determined based upon the Applicable applicable Market Value of a unit Unit of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization Event. For purposes of this Section 5.02(a), The “Applicable Market Value” of a Unit of Exchange Property shall be deemed to refer to the Applicable Market Value determined, on any date of the Exchange Property and such value shall be determined determination, with respect to:
(A) with respect to any publicly traded securities that comprises all or part of the Exchange Property, based (to the extent practicable) on the Closing Price volume weighted average price of such securities, securities on such date;
(B) in the case of any cash that comprises composes all or part of the Exchange Property, based on the amount of such cash and cash; and
(C) in the case of any other property that comprises composes all or part of the Exchange Property, based on the value of such propertyproperty on such date, as determined determined, in each case, by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes At and after the effective time of this Section 5.02(a), the term “Closing Price” shall be determined by reference to the definition of Closing Price as if references therein to Class A Common Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a)any Reorganization Event, references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in the second immediately preceding first paragraph of this Section 5.02(a) shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any Reorganization Event, the Exchange 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 Person, as the case may be, in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental agreement pursuant to Section 5.02(a), the Company shall promptly file with the Purchase Contract Agent an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Exchange Property after any such 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 (or any successor) shall, within 20 days of the occurrence of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a), provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cash, securities or other property that constitute the Exchange Property and of the execution of such supplemental agreement, if applicable. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such Reorganization Event.
(d) The above provisions of this Section 5.02(a) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any shares of Capital Stock of the Company (or any successor) received by the holders of Class A Common Stock in any such Reorganization Event.
(e) In connection with any Reorganization 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 Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization 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 Reorganization Event (such quotient rounded down to the nearest cent).
(ii) In the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to zero.
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Samples: Purchase Contract Agreement (Genesee & Wyoming Inc)
Reorganization Events. (a) In the event of:
(i) any consolidation or merger of the Company with or into another Person (other than a merger or consolidation in which the Company is the continuing or surviving corporation and in which the Class A Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Company or another Person);
(ii) any direct or indirect sale, transferlease, lease assignment, transfer or conveyance to another Person of all or substantially all of the Company’s consolidated property and assets of the Companyor assets;
(iii) any reclassification of Class A Common Stock into securities, including securities other than Class A Common StockStock (other than changes in par value or resulting from a subdivision or combination); or
(iv) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition), ; in each case, as a result of which the Class A Common Stock would be converted into, or exchanged for, securities, cash or other property (each, a “Reorganization Event”), each Purchase Contract outstanding immediately prior to such Reorganization Event shall, without the consent of HoldersHolders of the Purchase Contracts, become a contract to purchase the kind of securities, cash and and/or other property (the “Exchange Property”) that a holder of Class A Common Stock would have been entitled to receive immediately prior to in connection with such Reorganization Event (such securities, cash and other property, the “Exchange Property” with each unit of Exchange Property being the kind and amount of Exchange Property that a holder of one share of Common Stock would have received in such Reorganization Event) and, 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 Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv) providing amending this Agreement and the Purchase Contracts to provide for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type and amount of Exchange Property in the case of any Reorganization Event that causes the Class A 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 shareholder election) will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Class A Common Stock that affirmatively make such an election (or if no holders of Class A Common Stock make such an election, the types and amounts of consideration actually received by the holders of Class A Common Stock). The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after such determination is made. The number of units of Exchange Property the Company shall deliver for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect of such redemptionan Acquisition Termination Redemption) following the effective date of such Reorganization Event shall be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on the Fixed Settlement Rate Rates then in effect on the applicable Determination Date, or such other settlement rates or redemption rates as provided herein (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is prior to the close of business on the Determination Date). Each Fixed Settlement Rate shall be determined based upon the Applicable Market Value of a unit of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization Event. For purposes of this Section 5.02(a), “Applicable Market Value” shall be deemed to refer to the Applicable Market Value of the Exchange Property and such value shall be determined (A) with respect to in the case of any publicly traded securities that comprises comprise all or part of the Exchange Property, based on the Closing Price VWAP of such securitiessecurities on such Determination Date, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such propertyproperty on such Determination Date, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes of this Section 5.02(a), the term “Closing PriceVWAP” shall be determined by reference to the definition of Closing Price VWAP as if references therein to Class A Common Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such If the Exchange Property in respect of any Reorganization Event includes, in whole or in part, securities of another Person, such supplemental agreement described in the second immediately preceding paragraph shall be executed by such other Person and shall (x) provide for anti-dilution and other adjustments that shall be as nearly equivalent as is possible practicable, as determined by the officer of the Company executing such supplemental agreement, to the adjustments provided for in this Article 5V, and (y) otherwise modify the terms of this Agreement and the Purchase Contracts to reflect the substitution of the applicable Exchange Property for the Common Stock (or other Exchange Property then underlying the Purchase Contracts). If, In establishing such anti-dilution and other adjustments referenced in the case of any Reorganization Eventimmediately preceding sentence, the Exchange Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of such officer shall act in a Person other than the successor or purchasing Person, as the case may be, commercially reasonable manner and in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoinggood faith.
(b) In the event the Company shall execute a supplemental agreement pursuant to Section 5.02(a), the Company shall promptly file with the Purchase Contract Agent an Officers’ Officer’s Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Exchange Property after any such 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 Holdersnotify Holders thereof. The Company (or any successor) shall, within 20 days of the occurrence of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a), provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cash, securities or other property that constitute the Exchange Property and of the execution of such supplemental agreement, if applicable. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such Reorganization Event.
(d) The above provisions of this Section 5.02(a) 5.02 shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any shares of Capital Stock of the Company (or any successor) received by the holders of Class A Common Stock in any such Reorganization Event.
(e) In connection with any Reorganization 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 Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization 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 Reorganization Event (such quotient rounded down to the nearest cent).
(ii) In the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to zero.
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Reorganization Events. (a) In the event of:
(i) any consolidation or merger of the Company with or into another Person (other than a merger or consolidation in which the Company is the continuing or surviving corporation and in which the Class A Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Company or another Person);
(ii) any sale, transfer, lease or conveyance to another Person of all or substantially all of the property and assets of the Company;
(iii) any reclassification of Class A Common Stock into securities, including securities other than Class A Common Stock; or
(iv) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition), ; in each case, as a result of which the Class A Common Stock would be converted into, or exchanged for, securities, cash or other property (each, a “Reorganization Event”), each Purchase Contract outstanding immediately prior to such Reorganization Event shall, without the consent of Holders, become a contract to purchase the kind of securities, cash and and/or other property (the “Exchange Property”) that a holder of Class A Common Stock would have been entitled to receive immediately prior to such Reorganization Event and, 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 Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv) providing amending this Agreement and the Purchase Contracts to provide for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type and amount of Exchange Property in the case of any Reorganization Event that causes the Class A 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 shareholder election) will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Class A Common Stock that affirmatively make such an election (or if no holders of Class A Common Stock make such an election, the types and amounts of consideration actually received by the holders of Class A Common Stock). The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after such determination is made. The number of units of Exchange Property the Company shall deliver for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect of such redemption) following the effective date of such Reorganization Event shall be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on the Fixed Settlement Rate Rates then in effect on the applicable Determination Date, or such other settlement rates or redemption rates as provided herein (without any interest thereon and without any right to dividends or distributions thereon which have a record date Record Date that is prior to the close of business on the Determination Date). Each Fixed Settlement Rate shall be determined based upon the Applicable Market Value of a unit of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization Event. For purposes of this Section 5.02(a), “Applicable Market Value” shall be deemed to refer to the Applicable Market Value of the Exchange Property and such value shall be determined (A) with respect to any publicly traded securities that comprises all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes of this Section 5.02(a), the term “Closing Price” shall be determined by reference to the definition of Closing Price as if references therein to Class A Common Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any Reorganization Event, the Exchange 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 Person, as the case may be, in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental agreement pursuant to Section 5.02(a), the Company shall promptly file with the Purchase Contract Agent an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Exchange Property after any such 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 (or any successor) shall, within 20 days of the occurrence of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a), provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cash, securities or other property that constitute the Exchange Property and of the execution of such supplemental agreement, if applicable. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such Reorganization Event.
(d) The above provisions of this Section 5.02(a) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any shares of Capital Stock of the Company (or any successor) received by the holders of Class A Common Stock in any such Reorganization Event.
(e) In connection with any Reorganization 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 Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization 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 Reorganization Event (such quotient rounded down to the nearest cent).
(ii) In the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to zero.
Appears in 1 contract
Samples: Purchase Contract Agreement (Brookdale Senior Living Inc.)
Reorganization Events. (a) In the event of:
(i) any consolidation or merger of the Company with or into another Person or consolidation with any other entity (other than a merger or consolidation in which the Company is the continuing or surviving corporation and in which the Class A Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Company or another Person);
(ii) any sale, assignment, transfer, lease or conveyance to another Person of all or substantially all of the property properties and assets of the CompanyCompany to any other Person or entity;
(iii) any reclassification of Class A Common Stock into securities, securities including securities other than Class A Common Stock; or
(iv) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition), in each case, as a result of which the Class A Common Stock would be converted into, or exchanged for, securities, cash or and/or other property (each, a “Reorganization Event”), then at and after the effective time of the Reorganization Event, each Purchase Contract outstanding immediately prior to such Reorganization Event shall, without the consent of Holders, become a contract to purchase the kind and amount of securities, cash and and/or other property (the “Exchange Property”) that a holder of Class A Common Stock would have been entitled to receive immediately prior to in connection with such Reorganization Event (such securities, cash and other property, the “Exchange Property” with each “Unit of Exchange Property” being the kind and amount of Exchange Property that a holder of one share of Common Stock would have received in such Reorganization Event) and, 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 Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv9.01 (iv) providing for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type and amount of Exchange Property in the case of any Reorganization Event that causes the Class A 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 shareholder election) will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Class A Common Stock that affirmatively make such an election (or if no holders of Class A Common Stock make such an election, the types and amounts of consideration actually received by the holders of Class A Common Stock). The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after such determination is made. The number of units Units of Exchange Property that the Company shall deliver cause to be delivered for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect of such redemptionredemption pursuant to Section 4.09(c)(ii)) following the effective date of such Reorganization Event shall be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on by the Fixed Settlement Rate, the Early Mandatory Settlement Rate, the Early Settlement Rate, the Fundamental Change Early Settlement Rate then in effect on or the applicable Determination DateMerger Redemption Rate, or such other settlement rates or redemption rates as provided herein the case may be (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is Record Date prior to the Determination Datedate such Purchase Contracts are actually settled). Each Fixed Following the Effective Date of such Reorganization Event, the Settlement Rate shall be determined based upon the Applicable applicable Market Value of a unit Unit of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization Event. For purposes of this Section 5.02(a), “Applicable Market Value” shall be deemed to refer to the Applicable Market Value of the Exchange Property and such value shall be determined (A) with respect to any publicly traded securities that comprises all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes of this Section 5.02(a), the term “Closing Price” shall be determined by reference to the definition of Closing Price as if references therein to Class A Common Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any Reorganization Event, the Exchange 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 Person, as the case may be, in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental agreement pursuant to Section 5.02(a), the Company shall promptly file with the Purchase Contract Agent an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Exchange Property after any such 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 (or any successor) shall, within 20 days of the occurrence of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a), provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cash, securities or other property that constitute the Exchange Property and of the execution of such supplemental agreement, if applicable. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such Reorganization Event.
(d) The above provisions of this Section 5.02(a) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any shares of Capital Stock of the Company (or any successor) received by the holders of Class A Common Stock in any such Reorganization Event.
(e) In connection with any Reorganization 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 Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization 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 Reorganization Event (such quotient rounded down to the nearest cent).
(ii) In the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to zero.
Appears in 1 contract
Reorganization Events. (a) In the event of:
(i) any consolidation or merger of the Company with or into another Person (other than a merger or consolidation in which the Company is the continuing or surviving corporation and in which the Class A Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Company or another Person);
(ii) any direct or indirect sale, transferlease, lease assignment, transfer or conveyance to another Person of all or substantially all of the Company’s consolidated property and assets of the Companyor assets;
(iii) any reclassification of Class A Common Stock into securities, including securities other than Class A Common StockStock (other than changes in par value or resulting from a subdivision or combination); or
(iv) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition), ; in each case, as a result of which the Class A Common Stock would be converted into, or exchanged for, securities, cash or other property (each, a “Reorganization Event”), each Purchase Contract outstanding immediately prior to such Reorganization Event shall, without the consent of HoldersHolders of the Purchase Contracts, become a contract to purchase the kind of securities, cash and and/or other property (the “Exchange Property”) that a holder of Class A Common Stock would have been entitled to receive immediately prior to in connection with such Reorganization Event (such securities, cash and other property, the “Exchange Property” with each unit of Exchange Property being the kind and amount of Exchange Property that a holder of one share of Common Stock would have received in such Reorganization Event) and, 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 Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv) providing amending this Agreement and the Purchase Contracts to provide for such change in the right to settle the Purchase Contracts. Notwithstanding anything to the contrary herein, in no event shall the Acquisition and related transactions constitute a Reorganization Event. For purposes of the foregoing, the type and amount of Exchange Property in the case of any Reorganization Event that causes the Class A 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 shareholder election) will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Class A Common Stock that affirmatively make such an election (or if no holders of Class A Common Stock make such an election, the types and amounts of consideration actually received by the holders of Class A Common Stock). The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after such determination is made. The number of units of Exchange Property the Company shall deliver for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect of such redemption) following the effective date of such Reorganization Event shall be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on the Fixed Settlement Rate Rates then in effect on the applicable Determination Date, or such other settlement rates or redemption rates as provided herein (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is prior to the close of business on the Determination Date). Each Fixed Settlement Rate shall be determined based upon the Applicable Market Value of a unit of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization Event. For purposes of this Section 5.02(a), “Applicable Market Value” shall be deemed to refer to the Applicable Market Value of the Exchange Property and such value shall be determined (A) with respect to any publicly traded securities that comprises all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes of this Section 5.02(a), the term “Closing Price” shall be determined by reference to the definition of Closing Price as if references therein to Class A Common Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any Reorganization Event, the Exchange 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 Person, as the case may be, in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental agreement pursuant to Section 5.02(a), the Company shall promptly file with the Purchase Contract Agent an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Exchange Property after any such 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 (or any successor) shall, within 20 days of the occurrence of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a), provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cash, securities or other property that constitute the Exchange Property and of the execution of such supplemental agreement, if applicable. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such Reorganization Event.
(d) The above provisions of this Section 5.02(a) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any shares of Capital Stock of the Company (or any successor) received by the holders of Class A Common Stock in any such Reorganization Event.
(e) In connection with any Reorganization 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 Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization 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 Reorganization Event (such quotient rounded down to the nearest cent).
(ii) In the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to zero.
Appears in 1 contract
Samples: Purchase Contract Agreement (Elanco Animal Health Inc)
Reorganization Events. (a) In the event of:
(i) any consolidation or merger of the Company with or into another Person (other than a merger or consolidation in which the Company is the continuing or surviving corporation and in which the Class A Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Company or another Person);
(ii) any sale, transfer, lease or conveyance to another Person of all or substantially all of the property and assets of the Company;
(iii) any reclassification of Class A Common Stock into securities, securities including securities other than Class A Common Stock; or
(iv) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition), in each case, as a result of which the Class A Common Stock would be converted into, or exchanged for, securities, cash or property (each, a “Reorganization Event”), each Purchase Contract outstanding immediately prior to such Reorganization Event shall, without the consent of Holders, become a contract to purchase the kind of securities, cash and other property (the “Exchange Property”) that a holder of Class A Common Stock would have been entitled to receive immediately prior to such Reorganization Event and, 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 Note Issuer, the Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv) providing for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type and amount of Exchange Property in the case of any Reorganization Event that causes the Class A 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 shareholder election) will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Class A Common Stock that affirmatively make such an election (or if no holders of Class A Common Stock make such an election, the types and amounts of consideration actually received by the holders of Class A Common Stock). The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after such determination is made. The number of units of Exchange Property the Company shall deliver for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect of such redemption) following the effective date of such Reorganization Event shall be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on the Fixed Settlement Rate then in effect on the applicable Determination Date, or such other settlement rates or redemption rates as provided herein Date (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is prior to the Determination Date). Each Fixed Settlement Rate shall be determined based upon the Applicable Market Value of a unit of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization Event. For purposes of this Section 5.02(a), “Applicable Market Value” shall be deemed to refer to the Applicable Market Value of the Exchange Property and such value shall be determined (A) with respect to any publicly traded securities that comprises all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes of this Section 5.02(a), the term “Closing Price” shall be determined by reference to the definition of Closing Price as if references therein to Class A Common Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any Reorganization Event, the Exchange 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 Person, as the case may be, in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental agreement pursuant to Section 5.02(a), the Company shall promptly file with the Purchase Contract Agent an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Exchange Property after any such 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 (or any successor) shall, within 20 days of the occurrence of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a), provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cash, securities or other property that constitute the Exchange Property and of the execution of such supplemental agreement, if applicable. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such Reorganization Event.
(d) The above provisions of this Section 5.02(a) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any shares of Capital Stock of the Company (or any successor) received by the holders of Class A Common Stock in any such Reorganization Event.
(e) In connection with any Reorganization 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 Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization 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 Reorganization Event (such quotient rounded down to the nearest cent).
(ii) In the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to zero.
Appears in 1 contract
Samples: Purchase Contract Agreement (Hovnanian Enterprises Inc)
Reorganization Events. (a) In the event ofThe following events are defined as “Reorganization Events”:
(i) any consolidation recapitalization, reclassification or merger change of the Company with or into another Person Common Stock (other than changes resulting from a merger subdivision or consolidation in which the Company is the continuing or surviving corporation and in which the Class A Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Company or another Personcombination);
(ii) any saleconsolidation, transfer, lease merger or conveyance to another Person of all or substantially all of the property and assets of combination involving the Company;
(iii) any reclassification sale, lease or other transfer to another Person of Class A Common Stock into securities, including securities other than Class A Common Stockthe consolidated assets of the Company and its Subsidiaries substantially as an entirety; or
(iv) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition), Common Stock; in each case, as a result of which the Class A Common Stock would be converted into, or exchanged for, stock, other securities, cash or property (each, a “Reorganization Event”), each Purchase Contract outstanding immediately prior to such Reorganization Event shall, without the consent of Holders, become a contract to purchase the kind of securities, cash and other property or assets (the including Cash or any combination thereof) (“Exchange Property”) that a holder of Class A Common Stock would have been entitled to receive immediately prior to such Reorganization Event and, prior to or at ). Following the effective time date of such a Reorganization Event, the Company or Settlement Rate shall be determined by reference to the successor or purchasing Personvalue of an Exchange Property Unit, as the case may be, shall execute with the Purchase Contract Agent and the Trustee Company shall deliver, upon settlement of any Purchase Contract, a supplemental agreement permitted under Section 9.01(iv) providing for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type and amount number of Exchange Property Units equal to the number of shares of Common Stock that it would otherwise be required to deliver. In the event holders of Common Stock (other than any Constituent Person or Affiliate thereof) have the opportunity to elect the form of consideration to be received in the case of any Reorganization Event that causes the Class A Common Stock to be converted into, or exchanged forEvent, the right Exchange Property Unit that Holders of the Units are entitled to receive more than a single type of consideration (determined based in part upon any form of shareholder election) will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Class A Common Stock that affirmatively make such an election (or if no holders of Class A Common Stock make such an election, the types and amounts of consideration actually received by the holders of Class A Common Stock). The Company shall notify In the Purchase Contract Agent in writing event of such weighted average as soon as practicable after such determination is made. The number of units of Exchange Property the Company shall deliver for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect of such redemption) following the effective date of such Reorganization Event shall be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on the Fixed Settlement Rate then in effect on the applicable Determination Date, or such other settlement rates or redemption rates as provided herein (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is prior to the Determination Date). Each Fixed Settlement Rate shall be determined based upon the Applicable Market Value of a unit of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization Event. For purposes of this Section 5.02(a), “Applicable Market Value” shall be deemed to refer to the Applicable Market Value of the Exchange Property and such value shall be determined (A) with respect to any publicly traded securities that comprises all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes of this Section 5.02(a), the term “Closing Price” shall be determined by reference to the definition of Closing Price as if references therein to Class A Common Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any Reorganization Event, the Exchange Property includes shares of stockPerson formed by such consolidation or surviving such merger or, securities or other property or assets (including cash or any combination thereof) of a Person if other than the successor or purchasing PersonCompany, as the case may be, in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person which acquires the Company’s assets and shall contain such additional provisions to protect the interests those of the Holders of the Equity-Linked Securities Company’s Subsidiaries substantially as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company an entirety, shall execute a supplemental agreement pursuant and deliver to Section 5.02(a), the Company shall promptly file with the Purchase Contract Agent an Officers’ Certificate briefly stating agreement providing that the reasons thereforholder of each Unit that remains outstanding after the Reorganization Event (if any) will have the rights described in the preceding paragraph and expressly assuming all of the Company’s obligations under the Purchase Contracts, this Agreement, the kind or Convertible Preferred Stock, any Series B Preferred Stock and the Remarketing Agreement. Such supplemental agreement shall provide for adjustments to the amount of cash, any securities constituting all or property or asset that will comprise the a portion of an Exchange Property after any such 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 (or any successor) shall, within 20 days of the occurrence of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a), provide written notice Unit and/or adjustments to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cashMaximum Settlement Rate, securities or other property that constitute the Exchange Property and of the execution of such supplemental agreementwhich, if applicable. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior for events subsequent to the effective date of such Reorganization Event.
, will be as nearly equivalent as may be practicable, as determined by the Company in its sole commercially reasonable discretion, to the adjustments provided for under Section 5.11 (d) The above provisions of this Section 5.02(a) it being understood that no such adjustments shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply be required with respect to any shares of Capital Stock portion of the Company (or any successor) received by the holders Exchange Property that consists of Class A Common Stock in any such Reorganization Event.
(e) cash). In connection with any Reorganization Event, the Company shall also adjust the Reference Dividend Threshold Amount shall be subject to adjustment as described in clause (i), clause (ii) or clause (iii) below, as based on the case may be.
(i) In the case of a Reorganization Event in which the Exchange Property (determined, as appropriate, pursuant to subsection (a) above and excluding any dissenters’ appraisal rights) is composed entirely number of shares of common stock comprising an Exchange Property Unit and (the “Merger Common Stock”), the Dividend Threshold Amount at and after the effective time of such Reorganization Event will be equal to (xif applicable) the Dividend Threshold Amount immediately prior to the effective time value of such Reorganization 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 Reorganization Event (such quotient rounded down to the nearest cent).
(ii) In the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a Reorganization Event in which the Exchange Property (determined, as appropriate, pursuant to subsection (a) above and excluding any dissenters’ appraisal rights) is composed entirely of non-stock consideration other than shares of common stock, the Dividend Threshold Amount at and after the effective time of such Reorganization Event will be equal to zero.comprising an Exchange
Appears in 1 contract
Reorganization Events. (a) In the event of:
(i) any consolidation or merger of the Company with or into another Person (other than a merger or consolidation in which the Company is the continuing or surviving corporation and in which the Class A Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Company or another Person);
(ii) any sale, transfer, lease or conveyance to another Person of all or substantially all of the property and assets of the Company;
(iii) any reclassification of Class A Common Stock into securities, including securities other than Class A Common Stock; or
(iv) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisitionacquisition covered by clause (i) above), in each case, as a result of which the Class A Common Stock would be converted into, or exchanged for, or would represent solely the right to receive, securities, cash or property (each, a “Reorganization Event”),” and, each Purchase Contract outstanding immediately prior to such Reorganization Event shall, without the consent of Holders, become a contract to purchase the kind of securities, cash and other property (or property, the “Exchange Property”) ,” and the amount of Exchange Property that a holder of Class A one share of the Common Stock would have been be entitled to receive immediately prior to on account of such Reorganization Event andEvent, prior to or at an “Exchange Property Unit”), then from and after the effective time of such Reorganization Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the consideration due upon settlement of any Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv) providing for such change will be determined in the right same manner as if each reference herein to settle any number of shares of Common Stock were instead a reference to the Purchase Contractssame number of Exchange Property Units. For purposes of the foregoing, the type and amount of Exchange Property in the case of any Reorganization Event that causes the Class A Common Stock to be converted into, into or exchanged for, or to represent solely the right to receive receive, more than a single type of consideration (determined based in part upon any form of shareholder election) will be deemed to be the weighted average of the types and amounts of consideration received pursuant to such Reorganization Event by the holders of Class A the Common Stock that affirmatively make such an election (or if no holders of Class A Common Stock make such an election, the types and amounts of consideration actually received by the holders of Class A Common Stock). The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after such determination is made. The number of units of Exchange Property the Company shall deliver Units for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect of such redemption) following the effective date time of such Reorganization Event shall will be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on the Fixed Settlement Rate then in effect on the applicable Determination Date, or such other settlement rates or redemption rates as provided herein (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is prior to the Determination Date)date such Purchase Contracts are actually settled. Each Fixed Settlement Rate shall be determined based upon the Applicable Market Value of a unit of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization Event. For purposes of this Section 5.02(a), “Applicable Market Value” shall be deemed to refer to the The Applicable Market Value of the Exchange Property and such value shall Unit will be determined (Ai) with respect to any publicly traded securities that comprises compose all or part of the Exchange PropertyProperty Unit, based on the Closing Price of such securities, securities (Bdetermined pursuant to the definition of “Closing Price” as if such securities were Common Stock); (ii) in the case of any cash that comprises composes all or part of the Exchange PropertyProperty Unit, based on the amount of such cash cash; and (Ciii) in the case of any other property that comprises composes all or part of the Exchange PropertyProperty Unit, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this such purpose. For purposes The above provisions of this Section 5.02(a5.01(e) shall similarly apply to successive Reorganization Events. Following each Reorganization Event, (i) for the avoidance of doubt, the Fixed Settlement Rates shall continue to be subject to adjustment (together with corresponding adjustments to the Fundamental Change Settlement Rates, the Stock Prices, the Reference Price and the Threshold Appreciation Price) pursuant to this Section 5.01; and (ii) for all purposes hereunder (including, without limitation, for purposes of determining whether a Fundamental Change has occurred), the term “Closing Price” each reference herein to Common Stock shall be determined by read as if such reference were instead a reference to the definition of Closing Price as if references therein to Class A Common Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any Reorganization Event, the Exchange 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 Person, as the case may be, in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental agreement pursuant to Section 5.02(a), the Company shall promptly file with the Purchase Contract Agent an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Exchange Property after any such 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 HoldersUnits. The Company (or any successor) shall, within 20 days of the occurrence of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a)Event, provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount composition of the cash, securities or other property that constitute the Exchange Property and of the execution of such supplemental agreement, if applicableExchange Property Units. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such Reorganization Event.
(d) The above provisions of this Section 5.02(a) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any shares of Capital Stock of the Company (or any successor) received by the holders of Class A Common Stock in any such Reorganization Event.
(e) In connection with any Reorganization 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 Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization 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 Reorganization Event (such quotient rounded down to the nearest cent5.01(e).
(ii) In the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to zero.
Appears in 1 contract
Reorganization Events. (a) In the event of:
(i) any reclassification, conversion, statutory exchange, merger, consolidation or merger other similar business combination of the Company with or into another Person (other than a merger or consolidation Person, in each case, pursuant to which the Company is the continuing or surviving corporation and in which the Class A Common Stock outstanding immediately prior to the merger is changed or consolidation is not converted into, or exchanged for for, cash, securities or other property of the Company or another Person);
(ii) any sale, transfer, lease or conveyance to another Person of all or substantially all a majority of the property and assets of the Company;
(iii) any reclassification of Class A , in each case pursuant to which the Common Stock is converted into securitiescash, including securities or other than Class A Common Stockproperty; or
(iviii) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition)) or reclassification, in recapitalization or reorganization of the Common Stock into other securities; (each case, as a result of which the Class A Common Stock would be converted into, or exchanged for, securities, cash or property (each, is referred to as a “Reorganization Event”), each Purchase Contract share of Series A Preferred Stock outstanding immediately prior to such Reorganization Event shallwill, without the consent of Holdersthe Holders and subject to Section 12(d) and Section 13(b), remain outstanding with all rights, preferences, privileges or voting power but shall become a contract to purchase convertible into, in accordance with Section 6, the number, kind and amount of securities, cash and other property (the “Exchange Property”) (without any interest on such Exchange Property other than subject to the express terms of such Exchange Property and without any right to dividends or distributions on such Exchange Property which have a record date that a holder is prior to the effectiveness of Class the Reorganization Event) that the Holder of such share of Series A Common Preferred Stock would have been entitled received in such Reorganization Event had such Holder converted its shares of Series A Preferred Stock into the applicable number of shares of Common Stock immediately prior to receive the effective date of the Reorganization Event using the Conversion Rate applicable immediately prior to the effective date of the Reorganization Event; provided that the foregoing shall not apply if such Holder is a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be (any such Person, a “Constituent Person”), or an Affiliate of a Constituent Person, to the extent such Reorganization Event provides for different treatment of Common Stock held by such Constituent Persons or such Affiliate thereof. If the kind or amount of securities, cash and other property receivable upon such Reorganization Event is not the same for each share of Common Stock held immediately prior to such Reorganization Event andby a Person (other than a Constituent Person or an Affiliate thereof), prior to or at then for the effective time purpose of such Reorganization Eventthis Section 12(a), the Company or the successor or purchasing Person, as the case may be, shall execute with the Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv) providing for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type kind and amount of Exchange Property in the case of any securities, cash and other property receivable upon conversion following such Reorganization Event that causes the Class A 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 shareholder election) will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Class A Common Stock that affirmatively make such an election (or if no holders of Class A Common Stock make such an election, the types and amounts of consideration actually received by the holders of Class A Common Stock). The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after such determination is made. The number of units of Exchange Property the Company shall deliver for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect of such redemption) following the effective date of such Reorganization Event shall be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on the Fixed Settlement Rate then in effect on the applicable Determination Date, or such other settlement rates or redemption rates as provided herein (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is prior to the Determination Date). Each Fixed Settlement Rate shall be determined based upon the Applicable Market Value of a unit of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization Event. For purposes of this Section 5.02(a), “Applicable Market Value” shall be deemed to refer to the Applicable Market Value of the Exchange Property and such value shall be determined (A) with respect to any publicly traded securities that comprises all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes of this Section 5.02(a), the term “Closing Price” shall be determined by reference to the definition of Closing Price as if references therein to Class A Common Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any Reorganization Event, the Exchange 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 Person, as the case may be, in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental agreement pursuant to Section 5.02(a), the Company shall promptly file with the Purchase Contract Agent an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Exchange Property after any such 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 (or any successor) shall, within 20 days of the occurrence of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a), provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cash, securities or other property that constitute the Exchange Property and of the execution of such supplemental agreement, if applicable. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such Reorganization Event.
(d) The above provisions of this Section 5.02(a) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any shares of Capital Stock of the Company (or any successor) received by the holders of Class A Common Stock in any such Reorganization Event.
(e) In connection with any Reorganization 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 Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization 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 Reorganization Event (such quotient rounded down to the nearest cent).
(ii) In the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to zero.
Appears in 1 contract
Samples: Investment Agreement (Cepton, Inc.)
Reorganization Events. (a) In Subject to Section 10(c), in the event of:
(i) any reclassification, statutory exchange, merger, consolidation or merger other similar business combination of the Company Corporation with or into another Person (other than Person, in each case, pursuant to which at least a merger or consolidation in which the Company is the continuing or surviving corporation and in which majority of the Class A Common Stock outstanding immediately prior to the merger is changed or consolidation is not converted into, or exchanged for for, cash, securities or other property of the Company Corporation or another Person);
(ii) any sale, transfer, lease or conveyance to another Person of all or substantially all of the property and assets of the Company;
(iii) any reclassification of Class A Common Stock into securities, including securities other than Class A Common Stock; or
(ivii) any statutory exchange of securities of the Company Corporation with another Person (other than in connection with a merger or acquisition)) or reclassification, recapitalization or reorganization of the Class A Common Stock into other securities, in each case, as a result other than the voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation (each of which the Class A Common Stock would be converted into, or exchanged for, securities, cash or property (each, is referred to as a “Reorganization Event”), each Purchase Contract share of Series A Preferred Stock outstanding immediately prior to such Reorganization Event shallwill, without the consent of Holdersthe Holders and subject to Section 6(d) and Section 7(a)(iii), remain outstanding but shall become a contract to purchase convertible into, in accordance with Section 9, the number, kind and amount of securities, cash and other property (the “Exchange Property”) (without any interest on such Exchange Property and without any right to dividends or distributions on such Exchange Property which have a record date that a holder is prior to the applicable Conversion Date) that the Holder of such share of Series A Preferred Stock would have received in such Reorganization Event had such Holder converted its shares of Series A Preferred Stock into the applicable number of shares of Class A Common Stock would have been entitled immediately prior to receive the effective date of the Reorganization Event using the Conversion Rate applicable immediately prior to the effective date of the Reorganization Event. If the kind or amount of securities, cash and other property receivable upon such Reorganization Event is not the same for each share of Class A Common Stock held immediately prior to such Reorganization Event andby a Person, prior to or at then for the effective time purpose of such Reorganization Eventthis Section 6(a), the Company or the successor or purchasing Person, as the case may be, shall execute with the Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv) providing for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type kind and amount of Exchange Property in the case of any securities, cash and other property receivable upon conversion following such Reorganization Event that causes the Class A 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 shareholder election) will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Class A Common Stock that affirmatively make such an election (or if no holders of Class A Common Stock make such an election, the types and amounts of consideration actually received by the holders of Class A Common Stock). The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after such determination is made. The number of units of Exchange Property the Company shall deliver for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect of such redemption) following the effective date of such Reorganization Event shall be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on the Fixed Settlement Rate then in effect on the applicable Determination Daterights, or such other settlement rates or redemption rates as provided herein (without any interest thereon preferences, privileges and without any right to dividends or distributions thereon which have a record date that is prior to the Determination Date). Each Fixed Settlement Rate shall be determined based upon the Applicable Market Value of a unit of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization Event. For purposes of this Section 5.02(a), “Applicable Market Value” shall be deemed to refer to the Applicable Market Value voting power of the Exchange Property and such value shall be determined (A) with respect to any publicly traded securities that comprises all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes of this Section 5.02(a), the term “Closing Price” shall be determined by reference to the definition of Closing Price as if references therein to Class Series A Common Preferred Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any Reorganization Event, the Exchange 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 Person, as the case may be, in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental agreement pursuant to Section 5.02(a), the Company shall promptly file with the Purchase Contract Agent an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Exchange Property after any such 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 (or any successor) shall, within 20 days of the occurrence of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a), provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cash, securities or other property that constitute the Exchange Property and of the execution of such supplemental agreement, if applicable. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of a Reorganization Event shall not be affected by such Reorganization Event.
(d) The above provisions of this Section 5.02(a) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any shares of Capital Stock of the Company (or any successor) received by the holders of Class A Common Stock in any such Reorganization Event.
(e) In connection with any Reorganization 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 Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization 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 Reorganization Event (such quotient rounded down to the nearest cent).
(ii) In the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to zero.
Appears in 1 contract
Reorganization Events. (a) In the event of:
(i) any reclassification, statutory exchange, merger, consolidation or merger other similar business combination of the Company with or into another Person (other than Person, in each case, pursuant to which at least a merger or consolidation in which majority of the Company is the continuing or surviving corporation and in which the Class A Common Stock outstanding immediately prior to the merger is changed or consolidation is not converted into, or exchanged for for, cash, securities or other property of the Company or another Person);
(ii) any sale, transfer, lease or conveyance to another Person of all or substantially all a majority of the property and assets of the Company;
(iii) any reclassification of Class A , in each case pursuant to which the Company Common Stock is converted into securitiescash, including securities or other than Class A Common Stockproperty; or
(iviii) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition)) or reclassification, in recapitalization or 0000-0000-0000.13 reorganization of the Company Common Stock into other securities; (each case, as a result of which the Class A Common Stock would be converted into, or exchanged for, securities, cash or property (each, is referred to as a “Reorganization Event”), ; then each Purchase Contract share of Series A Preferred Stock outstanding immediately prior to such Reorganization Event shallwill, without the consent approval or election of Holdersthe Holders and subject to Section 13(b), remain outstanding but shall become a contract to purchase convertible into, out of funds legally available therefor, the number, kind and amount of securities, cash and other property (the “Exchange Property”) (without any interest on such Exchange Property and without any right to dividends or distribution on such Exchange Property which have a record date that a holder is prior to the applicable Conversion Date) that the Holder of Class such share of Series A Common Preferred Stock would have been entitled received in such Reorganization Event had such Holder converted its shares of Series A Preferred Stock into the applicable number of shares of Company Common Stock immediately prior to receive the effective date of the Reorganization Event using the Conversion Price applicable immediately prior to the effective date of the Reorganization Event and the Accrued Value applicable at the time of such subsequent conversion; provided, however that the foregoing shall not apply if such Holder is a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be (any such Person, a “Constituent Person”), or an Affiliate of a Constituent Person, to the extent such Reorganization Event provides for different treatment of Company Common Stock held by such Constituent Persons or such Affiliate thereof. If the kind or amount of securities, cash and other property receivable upon such Reorganization Event is not the same for each share of Company Common Stock held immediately prior to such Reorganization Event andby a Person (other than a Constituent Person or an Affiliate thereof), prior to or at then for the effective time purpose of such Reorganization Eventthis Section 12(a), the Company or the successor or purchasing Person, as the case may be, shall execute with the Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv) providing for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type kind and amount of Exchange Property in the case of any securities, cash and other property receivable upon conversion following such Reorganization Event that causes the Class A 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 shareholder election) will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Class A Common Stock that affirmatively make such an election (or if no holders of Class A Common Stock make such an election, the types and amounts of consideration actually received by the holders of Class A Company Common Stock). The Company shall notify In the Purchase Contract Agent in writing event of such weighted average as soon as practicable after such determination is made. The number a Reorganization Event that constitutes a Change of units of Exchange Property Control and either the Company shall deliver for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect exercises its Change of such redemption) following the effective date of such Reorganization Event shall be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on the Fixed Settlement Rate then in effect on the applicable Determination Date, or such other settlement rates or redemption rates as provided herein (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is prior to the Determination Date). Each Fixed Settlement Rate shall be determined based upon the Applicable Market Value of a unit of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization Event. For purposes of this Section 5.02(a), “Applicable Market Value” shall be deemed to refer to the Applicable Market Value of the Exchange Property and such value shall be determined (A) Control Call with respect to any publicly traded securities that comprises all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes of this Section 5.02(a), the term “Closing Price” shall be determined by reference to the definition of Closing Price as if references therein to Class A Common Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any Reorganization Event, the Exchange 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 Person, as the case may be, in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental agreement Series A Preferred Stock pursuant to Section 5.02(a), the Company shall promptly file with the Purchase Contract Agent an Officers’ Certificate briefly stating the reasons therefor, the kind 9 or amount of cash, securities or property or asset that will comprise the Exchange Property after any Holder exercises such Reorganization Event, any adjustment to be made Holder’s rights with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company (or any successor) shall, within 20 days of the occurrence such Holder’s shares of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement Series A Preferred Stock pursuant to Section 5.02(a)9, provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cash, securities or other property that constitute the Exchange Property and of the execution of such supplemental agreement, if applicable. Failure to deliver such notice this Section 12(a) shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such Reorganization Event.
(d) The above provisions of this Section 5.02(a) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any such shares of Capital Stock of the Company (or any successor) received by the holders of Class Series A Common Stock in any such Reorganization EventPreferred Stock.
(e) In connection with any Reorganization 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 Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization 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 Reorganization Event (such quotient rounded down to the nearest cent).
(ii) In the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to zero.
Appears in 1 contract
Samples: Investment Agreement (eHealth, Inc.)
Reorganization Events. (a) In the event of:
(i) any reclassification, statutory exchange, merger, consolidation or merger other similar business combination of the Company with or into another Person (other than Person, in each case, pursuant to which at least a merger or consolidation in which majority of the Company is the continuing or surviving corporation and in which the Class A Common Stock outstanding immediately prior to the merger is changed or consolidation is not converted into, or exchanged for for, cash, securities or other property of the Company or another Person);
(ii) any sale, transfer, lease or conveyance to another Person of all or substantially all a majority of the property and assets of the Company;
(iii) any reclassification of Class A , in each case pursuant to which the Common Stock is converted into securitiescash, including securities or other than Class A Common Stockproperty; or
(iviii) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition)) or reclassification, recapitalization or reorganization of the Common Stock into other securities; other than, in each case, as any such transaction that constitutes a result Change of Control, with respect to which, for the avoidance of doubt, the provisions of Section 9 shall apply (each of which the Class A Common Stock would be converted into, or exchanged for, securities, cash or property (each, is referred to as a “Reorganization Event”), each Purchase Contract share of Series A Preferred Stock outstanding immediately prior to such Reorganization Event shallwill, without the consent of Holdersthe Holders and subject to Section 12(d) and Section 13(b), remain outstanding but shall become a contract to purchase convertible into, out of funds legally available therefor, the number, kind and amount of securities, cash and other property (the “Exchange Property”) (without any interest on such Exchange Property and without any right to dividends or distribution on such Exchange Property which have a record date that a holder is prior to the applicable Conversion Date) that the Holder of Class such share of Series A Common Preferred Stock would have been entitled received in such Reorganization Event had such Holder converted its shares of Series A Preferred Stock into the applicable number of shares of Common Stock immediately prior to receive the effective date of the Reorganization Event using the Conversion Rate applicable immediately prior to the effective date of the Reorganization Event and the Liquidation Preference (for the avoidance of doubt, reflecting increases in the amount of Compounded Dividends) applicable at the time of such subsequent conversion; provided that the foregoing shall not apply if such Holder is a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be (any such Person, a “Constituent Person”), or an Affiliate of a Constituent Person, to the extent such Reorganization Event provides for different treatment of Common Stock held by such Constituent Persons or such Affiliate thereof. If the kind or amount of securities, cash and other property receivable upon such Reorganization Event is not the same for each share of Common Stock held immediately prior to such Reorganization Event andby a Person (other than a Constituent Person or an Affiliate thereof), prior to or at then for the effective time purpose of such Reorganization Eventthis Section 12(a), the Company or the successor or purchasing Person, as the case may be, shall execute with the Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv) providing for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type kind and amount of Exchange Property in the case of any securities, cash and other property receivable upon conversion following such Reorganization Event that causes the Class A 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 shareholder election) will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Class A Common Stock that affirmatively make such an election (or if no holders of Class A Common Stock make such an election, the types and amounts of consideration actually received by the holders of Class A Common Stock). The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after such determination is made. The number of units of Exchange Property the Company shall deliver for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect of such redemption) following the effective date of such Reorganization Event shall be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on the Fixed Settlement Rate then in effect on the applicable Determination Date, or such other settlement rates or redemption rates as provided herein (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is prior to the Determination Date). Each Fixed Settlement Rate shall be determined based upon the Applicable Market Value of a unit of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization Event. For purposes of this Section 5.02(a), “Applicable Market Value” shall be deemed to refer to the Applicable Market Value of the Exchange Property and such value shall be determined (A) with respect to any publicly traded securities that comprises all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes of this Section 5.02(a), the term “Closing Price” shall be determined by reference to the definition of Closing Price as if references therein to Class A Common Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any Reorganization Event, the Exchange 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 Person, as the case may be, in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental agreement pursuant to Section 5.02(a), the Company shall promptly file with the Purchase Contract Agent an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Exchange Property after any such 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 (or any successor) shall, within 20 days of the occurrence of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a), provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cash, securities or other property that constitute the Exchange Property and of the execution of such supplemental agreement, if applicable. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such Reorganization Event.
(d) The above provisions of this Section 5.02(a) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any shares of Capital Stock of the Company (or any successor) received by the holders of Class A Common Stock in any such Reorganization Event.
(e) In connection with any Reorganization 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 Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization 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 Reorganization Event (such quotient rounded down to the nearest cent).
(ii) In the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to zero.
Appears in 1 contract
Reorganization Events. (ai) In the event ofthat there occurs:
(iA) any consolidation consolidation, merger or merger other business combination of the Company Corporation with or into another Person (other than a merger or consolidation in which the Company is the continuing or surviving corporation and in which the Class A Common Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Company or another Person);
(iiB) any sale, transfer, lease or conveyance to another Person of all or substantially all of the property and assets of the CompanyCorporation;
(iiiC) any reclassification reclassification, recapitalization or reorganization of Class A Common Stock into securities, including securities other than Class A Common Stockthe Corporation; or
(ivD) any statutory exchange of the outstanding shares of Common Stock for securities of the Company with another Person (other than in connection with a consolidation, merger or acquisitionother business combination), ; and in each case, as a result of which the Class A Common Stock would be converted into, or exchanged for, securities, cash or property (each, a “Reorganization Event”), each Purchase Contract outstanding immediately prior to such Reorganization Event shall, without the consent of Holders, become a contract to purchase the kind of securities, cash and other property (the “Exchange Property”) that a holder of Class A Common Stock would have been entitled to receive immediately prior to such Reorganization Event and, 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 Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv) providing for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type and amount of Exchange Property in the case of any Reorganization Event that causes the Class A 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 shareholder election) will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Class A the Common Stock that affirmatively make such an election (or if no holders of Class A Common Stock make such an election, the types and amounts of consideration actually received by the holders of Class A Common Stock). The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after such determination is made. The number of units of Exchange Property the Company shall deliver for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect of such redemption) following the effective date of such Reorganization Event shall be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on the Fixed Settlement Rate then in effect on the applicable Determination Date, or such other settlement rates or redemption rates as provided herein (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is prior to the Determination Date). Each Fixed Settlement Rate shall be determined based upon the Applicable Market Value of a unit of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization Event. For purposes of this Section 5.02(a), “Applicable Market Value” shall be deemed to refer to the Applicable Market Value of the Exchange Property and such value shall be determined (A) with respect to any publicly traded securities that comprises all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes of this Section 5.02(a), the term “Closing Price” shall be determined by reference to the definition of Closing Price as if references therein to Class A Common Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any Reorganization Event, the Exchange Property includes shares of receive stock, other securities or other property or assets (including cash or any combination thereof) with respect to or in exchange for the Common Stock (any such event or transaction, a “Reorganization Event”) each share of a Person Series A Preferred Stock outstanding immediately prior to such Reorganization Event shall, without notice to or consent of the Holder(s) and subject to Subdivision 13(k)(v), become convertible (but, for the avoidance of doubt, shall not be automatically converted in connection with such Reorganization Event) into the kind of securities, cash and other property received in such Reorganization Event by the holders of the Common Stock (other than the successor counterparty to the Reorganization Event or purchasing Personan Affiliate of such counterparty) (such securities, as cash and other property, the case may be, in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing“Exchange Property”).
(bii) In the event that holders of the Company shall execute a supplemental agreement pursuant shares of Common Stock have the opportunity to Section 5.02(a)elect the form of consideration to be received in such transaction, the Company consideration that the Holder(s) are entitled to receive upon conversion shall promptly file with be deemed to be the Purchase Contract Agent types and amounts of consideration received by a majority of the holders of the shares of Common Stock that did make an Officers’ Certificate briefly stating affirmative election. Table of Contents
(iii) The above provisions of this Subdivision 13(k) shall similarly apply to successive Reorganization Events and the reasons therefor, provisions of Subdivision 13(j) shall apply to any shares of capital stock received by the kind or amount holders of cash, securities or property or asset that will comprise the Exchange Property after Common Stock in any such 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. .
(iv) The Company Corporation (or any successor) shall, within 20 days of the occurrence consummation of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a)Event, provide written notice to the Purchase Contract Agent and Holders Holder(s) of such occurrence consummation of such event and of the kind and amount of the cash, securities or other property that constitute constitutes the Exchange Property and of the execution of such supplemental agreement, if applicableProperty. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreementSubdivision 13(k).
(cv) The Company Corporation shall not become enter into any agreement for a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such Reorganization Event.
(d) The above provisions of this Section 5.02(a) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any shares of Capital Stock of the Company (or any successor) received by the holders of Class A Common Stock in any such Reorganization Event.
(e) In connection with any Reorganization 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 transaction constituting a Reorganization Event in which unless:
(A) such agreement provides for, or does not interfere with or prevent (as applicable), conversion of the Series A Preferred Stock into the Exchange Property in a manner that is consistent with and gives effect to this Subdivision 13(k); and
(determined, as appropriate, pursuant B) to subsection (a) above and excluding any dissenters’ appraisal rights) the extent that the Corporation is composed entirely of shares of common stock (not the “Merger Common Stock”), the Dividend Threshold Amount at and after the effective time of surviving corporation in such Reorganization Event or will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of dissolved in connection with such Reorganization Event, divided by (y) proper provision shall be made in the number of shares of Merger Common Stock that a holder of one share of Common Stock would receive in agreements governing such Reorganization Event (such quotient rounded down to for the nearest cent).
(ii) In conversion of the case Series A Preferred Stock into stock of a Reorganization Event in which the Exchange 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 Person surviving such Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubtor, in the case of a Reorganization Event described in which Subdivision 13(k)(i)(B), an exchange of Series A Preferred Stock for the Exchange Property (determinedstock of the Person to whom the Corporation’s assets are conveyed or transferred, as appropriate, pursuant to subsection (a) above and excluding any dissenters’ appraisal rights) is composed entirely such stock of consideration other than shares of common stock, the Dividend Threshold Amount at and after the effective time of Person surviving such Reorganization Event will be or to whom the Corporation’s assets are conveyed or transferred shall have voting powers, preferences and relative, participating, optional or other special rights as nearly equal as possible to zerothose provided in this Certificate of Incorporation.
Appears in 1 contract
Samples: Merger Agreement (Affiliated Computer Services Inc)
Reorganization Events. (a) In the event of:
(i) any merger of WGP with or into or consolidation of WGP with any other entity (other than a merger or consolidation in which WGP is the continuing or surviving corporation and in which the WGP Common Units outstanding immediately prior to the merger or consolidation are not exchanged for cash, securities or other property of WGP or another Person);
(ii) any sale, assignment, transfer, lease or conveyance of all or substantially all of WGP’s properties and assets to any other Person or entity;
(iii) any recapitalization, reclassification or change of WGP Common Units into securities including securities other than WGP Common Units; or
(iv) any statutory exchange of WGP’s securities with another Person (other than in connection with a merger or acquisition), in each case, as a result of which the WGP Common Units would be converted into, or exchanged for, securities, cash and/or other property (each, a “WGP Reorganization Event”), then at and after the effective time of the WGP Reorganization Event, each Purchase Contract outstanding shall, without the consent of Holders, become a contract to purchase the kind and amount of securities, cash and/or other property that a holder of WGP Common Units would have been entitled to receive in connection with such WGP Reorganization Event (such securities, cash and other property, the “WGP Exchange Property” with each “Unit of WGP Exchange Property” being the kind and amount of WGP Exchange Property that a holder of one WGP Common Unit would have received in such WGP Reorganization Event), subject to the Company’s right to make an APC Settlement Election. Prior to or at the effective time of such WGP Reorganization Event, the Company shall execute with the Purchase Contract Agent and the Trustee a supplemental agreement providing for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type and amount of WGP Exchange Property in the case of any WGP Reorganization Event that causes the WGP Common Units 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 equityholder election) shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of WGP Common Units that affirmatively make such an election. The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after the determination of such weighted average is made. Such supplemental agreement described in the immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any WGP Reorganization Event, the WGP Exchange 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 Person, as the case may be, in such WGP Reorganization Event, then such supplemental agreement shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event of:
(i) any merger of the Company with or into another Person or consolidation of the Company with any other entity (other than a merger or consolidation in which the Company is the continuing or surviving corporation and in which the Class A Common APC Stock outstanding immediately prior to the merger or consolidation is not exchanged for cash, securities or other property of the Company or another Person);
(ii) any sale, assignment, transfer, lease or conveyance to another Person of all or substantially all of the property properties and assets of the CompanyCompany to any other Person or entity;
(iii) any recapitalization, reclassification or change of Class A Common APC Stock into securities, securities including securities other than Class A Common APC Stock; or
(iv) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition), in each case, as a result of which the Class A Common APC Stock would be converted into, or exchanged for, securities, cash or and/or other property (each, a an “Anadarko Reorganization Event”), each then at and after the effective time of the Anadarko Reorganization Event, the Company’s ability to settle the Purchase Contract outstanding immediately prior to such Reorganization Event Contracts in APC Stock upon an APC Settlement Election shall, without the consent of Holders, become a contract right to purchase elect to settle each Purchase Contract in the kind and amount of securities, cash and and/or other property (the “Exchange Property”) that a holder of Class A Common APC Stock would have been entitled to receive immediately prior to in connection with such Anadarko Reorganization Event and(such securities, prior cash and other property, the “APC Exchange Property” with each “Unit of APC Exchange Property” being the kind and amount of APC Exchange Property that a holder of one share of APC Stock would have received in such Anadarko Reorganization Event). Prior to or at the effective time of such Anadarko Reorganization Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv) providing for such change in the right to settle the Purchase ContractsContracts in APC Stock upon an APC Settlement Election. For purposes of the foregoing, the type and amount of APC Exchange Property in the case of any Anadarko Reorganization Event that causes the Class A Common APC 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 shareholder equityholder election) will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Class A Common APC Stock that affirmatively make such an election (or if no holders of Class A Common Stock make such an election, the types and amounts of consideration actually received by the holders of Class A Common Stock). The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after the determination of such determination weighted average is made. The number of units of Exchange Property the Company shall deliver for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect of such redemption) following the effective date of such Reorganization Event shall be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on the Fixed Settlement Rate then in effect on the applicable Determination Date, or such other settlement rates or redemption rates as provided herein (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is prior to the Determination Date). Each Fixed Settlement Rate shall be determined based upon the Applicable Market Value of a unit of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization Event. For purposes of this Section 5.02(a), “Applicable Market Value” shall be deemed to refer to the Applicable Market Value of the Exchange Property and such value shall be determined (A) with respect to any publicly traded securities that comprises all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes of this Section 5.02(a), the term “Closing Price” shall be determined by reference to the definition of Closing Price as if references therein to Class A Common Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5Section 5.03. If, in the case of any Anadarko Reorganization Event, the APC Exchange 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 Person, as the case may be, in such Anadarko Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(bc) In The number of Units of WGP Exchange Property or Units of APC Exchange Property, as the event case may be, that the Company shall execute a supplemental agreement pursuant cause to Section 5.02(a), the Company shall promptly file with the be delivered for each Purchase Contract Agent an Officers’ Certificate briefly stating settled following the reasons therefor, the kind effective date of such WGP Reorganization Event or amount of cash, securities or property or asset that will comprise the Exchange Property after any such Anadarko Reorganization Event, as the case may be, shall be equal to the number of WGP Common Units or shares of APC Stock, as the case may be, that the Company would otherwise be required to deliver as determined by the Fixed Settlement Rates then in effect on the applicable Determination Date or such other settlement rates as provided herein. The Daily VWAPs shall be determined based upon the applicable Market Value of a Unit of WGP Exchange Property that a holder of one WGP Common Unit would have received in such WGP Reorganization Event or of a Unit of APC Exchange Property that a holder of one share of APC Stock would have received in such Anadarko Reorganization Event, as the case may be. The “Market Value” of a Unit of Exchange Property shall be determined, on any adjustment to be made date of determination, with respect thereto to (A) any publicly traded securities that comprises all or part of the Exchange Property, based (to the extent practicable) on the volume-weighted average price of such securities on such date, (B) any cash that composes all or part of the Exchange Property, based on the amount of such cash and (C) any other property (including any publicly traded securities for which determining a volume-weighted average price is not practicable) that composes all conditions precedent have been complied withor part of the Exchange Property, based on the value of such property on such date, as determined, in each case, by a nationally recognized independent investment banking firm retained by the Company for this purpose. At and after the effective time of any WGP Reorganization Event, references to WGP Common Units in the definition of “Trading Day” shall promptly mail notice thereof be replaced by references to any publicly traded securities that comprise all Holdersor part of the WGP Exchange Property. At and after the effective time of any Anadarko Reorganization Event, references to APC Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the APC Exchange Property.
(d) The Company (or any successor) shall, within 20 days of the occurrence of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement pursuant to Section 5.02(a), provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cash, securities or other property that constitute the applicable Exchange Property and of the execution of such supplemental agreement, if applicable. Failure to deliver such notice shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(ce) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions of this Section 5.02 shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such any Reorganization Event.
(df) The above provisions of this Section 5.02(a) and Section 5.02(b) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any shares of Capital Stock of WGP (or any successor) or the Company (or any successor) received by the holders of Class A WGP Common Stock Units or APC Stock, as the case may be, in any such Reorganization Event.
(eg) In connection with any WGP Reorganization Event, the Initial 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 WGP Reorganization Event in which the Exchange WGP Reference Property (determined, as appropriate, pursuant to subsection (a) above and excluding any dissenters’ appraisal rights) is composed entirely of shares of common stock Common Equity (the “Merger Common StockEquity”), the Initial Dividend Threshold Amount at and after the effective time of such WGP Reorganization Event will be equal to (x) the Initial Dividend Threshold Amount immediately prior to the effective time of such WGP Reorganization Event, divided by (y) the number of shares of Merger Common Stock Equity that a holder of one share of WGP Common Stock Unit would receive in such WGP Reorganization Event (such quotient rounded down to the nearest cent).
(ii) In the case of a WGP Reorganization Event in which the Exchange WGP 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 StockEquity, the Initial Dividend Threshold Amount at and after the effective time of such WGP Reorganization Event will be equal to (x) the Initial Dividend Threshold Amount immediately prior to the effective time of such WGP Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such WGP Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a WGP Reorganization Event in which the Exchange WGP 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 stockCommon Equity, the Initial Dividend Threshold Amount at and after the effective time of such WGP Reorganization Event will be equal to zero.
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Samples: Purchase Contract Agreement (Anadarko Petroleum Corp)
Reorganization Events. (a) In the event of:
(i) any reclassification, statutory exchange, merger, consolidation or merger other similar business combination of the Company with or into another Person (other than Person, in each case, pursuant to which at least a merger or consolidation in which the Company is the continuing or surviving corporation and in which majority of the Class A Common Stock outstanding immediately prior to the merger is changed or consolidation is not converted into, or exchanged for for, cash, securities or other property of the Company or another Person);
(ii) any sale, transfer, lease or conveyance to another Person of all or substantially all a majority of the property and assets of the Company;
(iii) any reclassification of , in each case pursuant to which the Class A Common Stock is converted into securitiescash, including securities or other than Class A Common Stockproperty; or
(iviii) any statutory exchange of securities of the Company with another Person (other than in connection with a merger or acquisition)) or reclassification, in each case, as a result recapitalization or reorganization of which the Class A Common Stock would be converted into, or exchanged for, into other securities, cash or property ; (each, each of which is referred to as a “Reorganization Event”), ) then each Purchase Contract share of Series A Preferred Stock outstanding immediately prior to such Reorganization Event shallwill, without the consent of Holdersthe Holders and subject to Section 12(d) and Section 13(b), remain outstanding but shall become a contract to purchase convertible into, out of funds legally available therefor, the number, kind and amount of securities, cash and other property (the “Exchange Property”) (without any interest on such Exchange Property and without any right to dividends or distribution on such Exchange Property which have a record date that a holder is prior to the applicable Conversion Date) that the Holder of such share of Series A Preferred Stock would have received in such Reorganization Event had such Holder converted its shares of Series A Preferred Stock into the applicable number of shares of Class A Common Stock would have been entitled immediately prior to receive the effective date of the Reorganization Event using the Conversion Rate applicable immediately prior to the effective date of the Reorganization Event and the Liquidation Preference (for the avoidance of doubt, reflecting increases in the amount of Compounded Dividends) applicable at the time of such subsequent conversion; provided that the foregoing shall not apply if such Holder is a Person with which the Company consolidated or into which the Company merged or which merged into the Company or to which such sale or transfer was made, as the case may be (any such Person, a “Constituent Person”), or an Affiliate of a Constituent Person, to the extent such Reorganization Event provides for different treatment of Class A Common Stock held by such Constituent Persons or such Affiliate thereof. If the kind or amount of securities, cash and other property receivable upon such Reorganization Event is not the same for each share of Class A Common Stock held immediately prior to such Reorganization Event andby a Person (other than a Constituent Person or an Affiliate thereof), prior to or at then for the effective time purpose of such Reorganization Eventthis Section 12(a), the Company or the successor or purchasing Person, as the case may be, shall execute with the Purchase Contract Agent and the Trustee a supplemental agreement permitted under Section 9.01(iv) providing for such change in the right to settle the Purchase Contracts. For purposes of the foregoing, the type kind and amount of Exchange Property in the case of any securities, cash and other property receivable upon conversion following such Reorganization Event that causes the Class A 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 shareholder election) will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Class A Common Stock Stock. In the event of a Reorganization Event that affirmatively make such an election (or if no holders constitutes a Change of Class A Common Stock make such an election, the types Control and amounts of consideration actually received by the holders of Class A Common Stock). The Company shall notify the Purchase Contract Agent in writing of such weighted average as soon as practicable after such determination is made. The number of units of Exchange Property either the Company shall deliver for each Purchase Contract settled or redeemed (if the Company elects not to deliver solely cash in respect exercises its Change of such redemption) following the effective date of such Reorganization Event shall be equal to the number of shares of Class A Common Stock that the Company would otherwise be required to deliver as determined based on the Fixed Settlement Rate then in effect on the applicable Determination Date, or such other settlement rates or redemption rates as provided herein (without any interest thereon and without any right to dividends or distributions thereon which have a record date that is prior to the Determination Date). Each Fixed Settlement Rate shall be determined based upon the Applicable Market Value of a unit of Exchange Property that a holder of one share of Class A Common Stock would have received in such Reorganization Event. For purposes of this Section 5.02(a), “Applicable Market Value” shall be deemed to refer to the Applicable Market Value of the Exchange Property and such value shall be determined (A) Control Call with respect to any publicly traded securities that comprises all or part of the Exchange Property, based on the Closing Price of such securities, (B) in the case of any cash that comprises all or part of the Exchange Property, based on the amount of such cash and (C) in the case of any other property that comprises all or part of the Exchange Property, based on the value of such property, as determined by a nationally recognized independent investment banking firm retained by the Company for this purpose. For purposes of this Section 5.02(a), the term “Closing Price” shall be determined by reference to the definition of Closing Price as if references therein to Class A Common Stock were to such publicly traded securities that comprise all or part of the Exchange Property. For purposes of this Section 5.02(a), references to Class A Common Stock in the definition of “Trading Day” shall be replaced by references to any publicly traded securities that comprise all or part of the Exchange Property. Such supplemental agreement described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is possible to the adjustments provided for in this Article 5. If, in the case of any Reorganization Event, the Exchange 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 Person, as the case may be, in such Reorganization Event, then such supplemental agreement shall also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the Equity-Linked Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) In the event the Company shall execute a supplemental agreement Series A Preferred Stock pursuant to Section 5.02(a), the Company shall promptly file with the Purchase Contract Agent an Officers’ Certificate briefly stating the reasons therefor, the kind 9 or amount of cash, securities or property or asset that will comprise the Exchange Property after any Holder exercises such Reorganization Event, any adjustment to be made Holder’s rights with respect thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company (or any successor) shall, within 20 days of the occurrence such Xxxxxx’s shares of any Reorganization Event or, if earlier, within 20 days of the execution of any supplemental agreement Series A Preferred Stock pursuant to Section 5.02(a)9, provide written notice to the Purchase Contract Agent and Holders of such occurrence of such event and of the kind and amount of the cash, securities or other property that constitute the Exchange Property and of the execution of such supplemental agreement, if applicable. Failure to deliver such notice this Section 12(a) shall not affect the operation of this Section 5.02 or the legality or validity of any such supplemental agreement.
(c) The Company shall not become a party to any Reorganization Event unless its terms are consistent with this Section 5.02. None of the foregoing provisions shall affect the right of a Holder of Purchase Contracts to effect Early Settlement pursuant to Section 4.06 and Section 4.07 prior to the effective date of such Reorganization Event.
(d) The above provisions of this Section 5.02(a) shall similarly apply to successive Reorganization Events and the provisions of Section 5.01 shall apply to any such shares of Capital Stock of the Company (or any successor) received by the holders of Class Series A Common Stock in any such Reorganization EventPreferred Stock.
(e) In connection with any Reorganization 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 Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization 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 Reorganization Event (such quotient rounded down to the nearest cent).
(ii) In the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such Reorganization Event, multiplied by (y) the Merger Valuation Percentage for such Reorganization Event (such product rounded down to the nearest cent).
(iii) For the avoidance of doubt, in the case of a Reorganization Event in which the Exchange 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 Reorganization Event will be equal to zero.
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