Spin Offs and Other Distributed Property. (i) If the Company distributes shares of its Capital Stock, evidences of its indebtedness or other assets or property of the Company, or rights, options or warrants to acquire Capital Stock of the Company or other securities, to all or substantially all holders of the Common Stock, excluding: (A) dividends, distributions, rights, options or warrants for which an adjustment was effected pursuant to Section 8.05(a) or 8.05(b), as applicable; (B) dividends or distributions paid exclusively in cash for which an adjustment was effected pursuant to Section 8.05(d); (C) Spin-Offs for which the provisions described in Section 8.05(c)(ii) will apply; and (D) an issuance solely pursuant to a Common Stock Change Event, as to which the provisions set forth in Section 8.08(a) will apply, then the Conversion Rate will be increased based on the following formula: where: CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices per share of the Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the Open of Business on such Ex-Dividend Date. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase, the Holder will receive, for each $1,000 principal amount of this Note outstanding on the record date for the distribution, at the same time and upon the same terms as holders of the Common Stock, the amount and kind of shares of Capital Stock, evidences of indebtedness, assets or property, rights, options or warrants or other securities that the Holder would have received if the Holder had owned a number of shares of Common Stock equal to the Conversion Rate in effect on the record date for such distribution (or in the case of a principal amount or portion of a principal amount that is not a multiple of $1,000, an equivalent pro rata amount). If any distribution of the type described in this Section 8.05(c)(i) is not so paid or made, or if any rights, options or warrants are not exercised before their expiration date, the Conversion Rate will be readjusted to be the Conversion Rate that would then be in effect if such distribution had not been declared. (ii) With respect to an adjustment pursuant to this Section 8.05(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to an Affiliate, a Subsidiary or other business unit of the Company, and such Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of the transaction) on a national securities exchange or a reasonably comparable non-U.S. equivalent (a “Spin-Off”), but excluding an issuance solely pursuant to a Common Stock Change Event as to which the provisions described in Section 8.08(a) apply, the Conversion Rate will be increased based on the following formula: where: CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such Spin-Off; CR1 = the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of Common Stock (determined for purposes of the definition of Last Reported Sale Price as if such Capital Stock or similar equity interest were the Common Stock) over the first ten (10) consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices per share of the Common Stock over the Valuation Period. Such adjustment shall become effective immediately after the Open of Business on such Ex-Dividend Date. The adjustment to the Conversion Rate under this Section 8.05(c)(ii) will be calculated as of the Close of Business on the last Trading Day of the Valuation Period but will be given effect as of immediately after the Open of Business on the Ex-Dividend Date of the Spin-Off. Notwithstanding anything to the contrary herein or in this Note, if necessary, the Company shall delay the settlement of any conversion of this Note where the Conversion Date occurs during the Valuation Period until the third (3rd) Business Day after the last day of the Valuation Period. If any distribution of the type described in this Section 8.05(c)(ii) is declared but not so made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to make such distribution, to the Conversion Rate that would then be in effect if such distribution had not been declared.
Appears in 3 contracts
Samples: Note Purchase Agreement (Xtant Medical Holdings, Inc.), Note Purchase Agreement (Xtant Medical Holdings, Inc.), Note Purchase Agreement (Xtant Medical Holdings, Inc.)
Spin Offs and Other Distributed Property. (iA) If the Company Borrower distributes shares of its Capital Common Stock, evidences of its indebtedness Indebtedness or other assets or property of the CompanyBorrower, or rights, options or warrants to acquire Capital Stock of the Company Borrower or other securitiessecurities of the Borrower, to all or substantially all holders of the Common Stock, excluding:
(A1) dividends, distributions, rights, options distributions and issuances described in Section 2.9(f)(i) hereof or warrants for which an adjustment was effected pursuant to Section 8.05(a2.9(f)(ii) or 8.05(b)hereof, as applicable;
(B2) dividends or distributions paid exclusively in cash for which an adjustment was effected pursuant to described in Section 8.05(d)2.9(f)(iv) hereof;
(C3) Spin-Offs for which the provisions described in Section 8.05(c)(ii) will apply; and
(D) an issuance solely pursuant to a Common Stock Change Event, as to which the provisions set forth in Section 8.08(a2.9(f)(iii)(B) hereof will apply, ; or
(4) distributions of Reference Property in a transaction described in Section 2.9(i). then the Conversion Rate will be increased based on the following formula: where: where CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for of such distribution; CR1 = the Conversion Rate in effect immediately after the Open of Business on such the Ex-Dividend DateDate of such distribution; SP0 = the average of the Last Reported Sale Prices per share Volume Weighted Average Price of the Common Stock over the ten five (105) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for of such distribution; and FMV = the fair market value (as determined by the Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for of such distribution. Such adjustment shall become effective immediately after the Open of Business on such Ex-Dividend Date. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase, the Holder each Lender will receive, for each $1,000 principal amount of this Note outstanding the aggregate Conversion Amount as would apply to the Loans held by such Lender on the record date for the distribution, at the same time and upon the same terms as holders of the Common Stock, the amount and kind of shares of Capital Stock, evidences of indebtednessIndebtedness, assets or property, rights, options or warrants to acquire Stock of the Borrower or other securities that the Holder such Lender would have received if the Holder such Lender had owned a number of shares of Common Stock equal to the Conversion Rate in effect on the record date Ex-Dividend Date for such distribution (or in distribution. Any increase made under this Section 2.9(f)(iii)(A) shall become effective immediately after the case Open of a principal amount or portion of a principal amount that is not a multiple of $1,000, an equivalent pro rata amount)Business on the Ex-Dividend Date for such distribution. If any such distribution of the type described in this Section 8.05(c)(i) is not so paid or made, or if any rights, options or warrants are not exercised before their expiration date, the Conversion Rate will be readjusted decreased to be the Conversion Rate that would then be in effect if such distribution had not been declared. To the extent that shares of Common Stock are not delivered after the expiration of such rights, options or warrants, including because the issued rights, options or warrants were not exercised, the Conversion Rate will be decreased to the Conversion Rate that would then be in effect had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered.
(iiB) With respect to an adjustment pursuant to this Section 8.05(c2.9(f)(iii) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to an Affiliate, a Subsidiary or other business unit of the CompanyBorrower, and such Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of the transaction) on a U.S. national securities exchange or a reasonably comparable non-U.S. equivalent (as determined by the Borrower) (a “Spin-Off”), but excluding an issuance solely pursuant to a Common Stock Change Event as to which the provisions described in Section 8.08(a) apply, the Conversion Rate will be increased based on the following formula: where: where CR0 = the Conversion Rate in effect immediately prior to the Open end of Business on the Ex-Dividend Date for such Spin-OffValuation Period; CR1 = the Conversion Rate in effect immediately after the Open end of Business on such Ex-Dividend Datethe Valuation Period; FMV0 = the average Volume Weighted Average Price of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of Common Stock (determined for purposes of the definition of Last Reported Sale the Volume Weighted Average Price as if such Capital Stock or similar equity interest were the Common Stock) over the first ten (10) consecutive Trading Day period after, and including, the Ex-Dividend Date of the such Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices per share Volume Weighted Average Price of the Common Stock over the Valuation Period. Such adjustment shall become effective immediately after the Open of Business on such Ex-Dividend Date. The adjustment to the Conversion Rate under this Section 8.05(c)(ii2.9(f)(iii) will be calculated occur as of the Close close of Business business on the last Trading Day of the Valuation Period but will Period; provided that for any Trading Day that falls within the Valuation Period, references to “10” in the portion of this Section 2.9(f)(iii) related to Spin-Offs shall be given effect deemed replaced with such lesser number of Trading Days as of immediately after the Open of Business on have elapsed between the Ex-Dividend Date of the such Spin-Off. Notwithstanding anything to the contrary herein or Off and such Trading Day in this Note, if necessary, the Company shall delay the settlement of any conversion of this Note where determining the Conversion Date occurs during the Valuation Period until the third (3rd) Business Day after the last day Rate as of the Valuation Periodsuch Trading Day. If any dividend or distribution of the type described in this Section 8.05(c)(ii) that constitutes a Spin-Off is declared but not so paid or made, the Conversion Rate shall be immediately readjusteddecreased, effective as of the date the Board of Directors Borrower determines not to pay or make such dividend or distribution, to the Conversion Rate that would then be in effect if such dividend or distribution had not been declareddeclared or announced. For purposes of this Section 2.9(f) (and subject in all respect to Section 2.9(f)(ix)), rights, options or warrants distributed by the Borrower to all holders of the Common Stock entitling them to subscribe for or purchase shares of the Borrower’s capital stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be Transferred with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this Section 2.9(f)(iii) (and no adjustment to the Conversion Rate under this Section 2.9(f)(iii) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 2.9(f)(iii). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Agreement, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 2.9(f)(iii) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued. For the purposes of Section 2.9(f)(i), Section 2.9(f)(ii), and this Section 2.9(f)(iii), if any dividend or distribution to which this Section 2.9(f)(iii) applies also includes one or both of:
(1) a dividend or distribution of shares of Common Stock to which Section 2.9(f)(i) hereof applies (a “Clause A Distribution”); or
(2) a dividend or distribution of rights, options or warrants to which Section 2.9(f)(ii) hereof applies (a “Clause B Distribution”) (any such distribution, a “Multi-Clause Distribution”), then (i) the portion of such Multi-Clause Distribution that is not a Clause A Distribution or a Clause B Distribution will be deemed to be a dividend or distribution to which this Section 2.9(f)(iii) applies (a “Clause C Distribution”), and any Conversion Rate adjustment required by this Section 2.9(f)(iii) with respect to such Clause C Distribution shall then be made, (ii) the Clause A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Section 2.9(f)(i) and Section 2.9(f)(ii) with respect thereto shall then be made, except that, if determined by the Borrower (I) the “Ex-Dividend Date” of the Clause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the Open of Business on such Ex-Dividend Date or Effective Date” within the meaning of Section 2.9(f)(i) or “outstanding immediately prior to the Open of Business on such Ex-Dividend Date” within the meaning of Section 2.9(f)(ii).
Appears in 2 contracts
Samples: Senior Subordinated Convertible Loan Agreement (Melinta Therapeutics, Inc. /New/), Senior Subordinated Convertible Loan Agreement (Melinta Therapeutics, Inc. /New/)
Spin Offs and Other Distributed Property. (i) If the Company distributes shares of its Capital Stock, evidences of its indebtedness or other assets or property of the Company, or rights, options or warrants to acquire Capital Stock of the Company or other securities, to all or substantially all holders of the Common Stock, excluding:
(A) dividends, distributions, rights, options or warrants for which an adjustment was effected pursuant to Section 8.05(a) hereof or Section 8.05(b)) hereof, as applicable;
(B) dividends or distributions paid exclusively in cash for which an adjustment was effected pursuant to Section 8.05(d)) hereof;
(C) Spin-Offs for which the provisions described in Section 8.05(c)(ii) hereof will apply; and
(D) an issuance solely pursuant to a Common Stock Change Event, as to which the provisions set forth in Section 8.08(a) hereof will apply, then the Conversion Rate will be increased based on the following formula: where: CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices per share of the Common Stock over the ten (10) 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Company’s Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the Open of Business on such Ex-Dividend Date. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase, the Holder will receive, for each $1,000 principal amount of this Note outstanding on the record date for the distribution, at the same time and upon the same terms as holders of the Common Stock, the amount and kind of shares of Capital Stock, evidences of indebtedness, assets or property, rights, options or warrants or other securities that the Holder would have received if the Holder had owned a number of shares of Common Stock equal to the Conversion Rate in effect on the record date for such distribution (or in the case of a principal amount or portion of a principal amount that is not a multiple of $1,000, an equivalent pro rata amount). If any distribution of the type described in this Section 8.05(c)(i) is not so paid or made, or if any rights, options or warrants are not exercised before their expiration date, the Conversion Rate will be readjusted to be the Conversion Rate that would then be in effect if such distribution had not been declared.
(ii) With respect to an adjustment pursuant to this Section 8.05(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to an Affiliate, a Subsidiary or other business unit of the Company, and such Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of the transaction) on a national securities exchange or a reasonably comparable non-U.S. equivalent (a “Spin-Off”), but excluding an issuance solely pursuant to a Common Stock Change Event as to which the provisions described in Section 8.08(a) hereof apply, the Conversion Rate will be increased based on the following formula: where: CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such Spin-Off; CR1 = the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of Common Stock (determined for purposes of the definition of Last Reported Sale Price as if such Capital Stock or similar equity interest were the Common Stock) over the first ten (10) 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices per share of the Common Stock over the Valuation Period. Such adjustment shall become effective immediately after the Open of Business on such Ex-Dividend Date. The adjustment to the Conversion Rate under this Section 8.05(c)(ii) will be calculated as of the Close of Business on the last Trading Day of the Valuation Period but will be given effect as of immediately after the Open of Business on the Ex-Dividend Date of the Spin-Off. Notwithstanding anything to the contrary herein or in this Note, if necessary, the Company shall delay the settlement of any conversion of this Note where the Conversion Date occurs during the Valuation Period until the third (3rd) Business Day after the last day of the Valuation Period. If any distribution of the type described in this Section 8.05(c)(ii) is declared but not so made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to make such distribution, to the Conversion Rate that would then be in effect if such distribution had not been declared.
Appears in 2 contracts
Samples: Note Purchase Agreement (Xtant Medical Holdings, Inc.), Note Purchase Agreement (Xtant Medical Holdings, Inc.)
Spin Offs and Other Distributed Property. (i) If the Company distributes shares of its Capital Stock, evidences of its indebtedness or other assets or property of the Company, or rights, options or warrants to acquire Capital Stock of the Company or other securities, to all or substantially all holders of the Common Stock, excluding:
(A1) dividends, distributions, rights, options distributions or warrants issuances for which an adjustment was effected pursuant to Section 8.05(a10.05(a) hereof or 8.05(b)Section 10.05(b) hereof, as applicable;
(B2) dividends or distributions paid exclusively in cash for which an adjustment was effected pursuant to Section 8.05(d);10.05(d) hereof; and
(C3) Spin-Offs for which the provisions described in Section 8.05(c)(ii) will apply; and
(D) an issuance solely pursuant to a Common Stock Change Event, as to which the provisions set forth in Section 8.08(a10.05(c)(ii) hereof will apply, then the Conversion Rate will be increased based on the following formula: where: where CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices per share of the Common Stock over the ten (10) 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Company’s Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the Open of Business on such Ex-Dividend Date. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase, the each Holder will receive, for each $1,000 principal amount of this Note outstanding Notes held on the record date for the distribution, at the same time and upon the same terms as holders of the Common Stock, the amount and kind of shares of Capital Stock, evidences of indebtedness, assets or property, rights, options or warrants or other securities that the such Holder would have received if the such Holder had owned a number of shares of Common Stock equal to the Conversion Rate in effect on the record date for such distribution (or in the case of a principal amount or portion of a principal amount that is not a multiple of $1,000, an equivalent pro rata amount)distribution. If any such distribution of the type described in this Section 8.05(c)(i) is not so paid or made, or if any rights, options or warrants are not exercised before their expiration date, the Conversion Rate will be readjusted to be the Conversion Rate that would then be in effect if such distribution had not been declared.
(ii) With respect to an adjustment pursuant to this Section 8.05(c10.05(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to an Affiliate, a Subsidiary or other business unit of the Company, and such Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of the transaction) on a national securities exchange or a reasonably comparable non-U.S. equivalent (as determined by the Company’s Board of Directors (or, for the avoidance of doubt, any committee thereof)) (a “Spin-Off”), but excluding an issuance solely pursuant to a Common Stock Change Event as to which the provisions described in Section 8.08(a) apply, the Conversion Rate will be increased based on the following formula: where: where CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such Spin-Off; CR1 = the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of Common Stock (determined for purposes of the definition of Last Reported Sale Price as if such Capital Stock or similar equity interest were the Common Stock) over the first ten (10) 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices per share of the Common Stock over the Valuation Period. Such adjustment shall become effective immediately after the Open of Business on such Ex-Dividend Date. The adjustment to the Conversion Rate under this Section 8.05(c)(ii10.05(c)(ii) will be calculated as of the Close of Business on the last Trading Day of the Valuation Period but will be given effect as of immediately after the Open of Business on the Ex-Dividend Date of the Spin-Off, with retroactive effect. Notwithstanding anything to the contrary herein or in this Note, if necessary, the The Company shall delay the settlement of any conversion of this Note Notes where the Conversion Date (in the case of Physical Settlement) or any Trading Day of the applicable Observation Period (in the case of Cash Settlement or Combination Settlement) occurs during the Valuation Period until the third (3rd) second Business Day after the last day of the Valuation Period. If any distribution of the type described in this Section 8.05(c)(ii10.05(c)(ii) is declared but not so made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to make such distribution, to the Conversion Rate that would then be in effect if such distribution had not been declared. For the purposes of this Section 10.05(c) and subsections (a) and (b) of this Section 10.05, any dividend or distribution to which this Section 10.05(c) applies and which dividend or distribution also includes one or both of:
(1) a dividend or distribution of shares of Common Stock to which Section 10.05(a) hereof applies (a “Clause A Distribution”); or
(2) a dividend or distribution of rights, options or warrants to which Section 10.05(b) hereof applies (a “Clause B Distribution”) (any such distribution, a “Multi-Clause Distribution”), then (i) the portion of such Multi-Clause Distribution that is not a Clause A Distribution or a Clause B Distribution will be deemed to be a dividend or distribution to which this Section 10.05(c) applies (a “Clause C Distribution”), and any Conversion Rate adjustment required by this Section 10.05(c) with respect to such Clause C Distribution will be made without considering any shares of Common Stock, if any, issuable as part of the portion of such Multi-Clause Distribution that is a Clause A Distribution or a Clause B Distribution, as applicable, (ii) the portion of such Multi-Clause Distribution that is a Clause B Distribution, if any, will be deemed to be distributed immediately following the Clause C Distribution, and any Conversion Rate adjustment required by Section 10.05(b) hereof with respect to such Clause B Distribution will be made, with any shares of Common Stock issuable as part of the portion of such Multi-Clause Distribution that is a Clause C Distribution deemed to be “outstanding immediately prior to the Open of Business on such Ex-Dividend Date” for the purposes of making such adjustment and (iii) the portion of such Multi-Clause Distribution that is a Clause A Distribution, if any, will be deemed to be distributed immediately following the Clause B Distribution or Clause C Distribution, as the case may be, and any Conversion Rate adjustment required by Section 10.05(a) hereof with respect to such Clause A Distribution will be made, with any shares of Common Stock issuable as part of the portion of such Multi-Clause Distribution that is either a Clause C Distribution or a Clause B Distribution deemed to be “outstanding immediately prior to the Open of Business on such Ex-Dividend Date or Effective Date” for the purposes of making such adjustment.
Appears in 2 contracts
Samples: Indenture (Par Technology Corp), Indenture (Par Technology Corp)
Spin Offs and Other Distributed Property. (i) If the Company distributes shares of its Capital Stock, evidences of its indebtedness or other assets or property of the Company, or rights, options or warrants to acquire Capital Stock of the Company or other securities, to all or substantially all holders of the Common Stock, excluding:
(A) dividends, distributions, rights, options or warrants for which an adjustment was effected pursuant to Section 8.05(a10.05(a) hereof or 8.05(b)Section 10.05(b) hereof, as applicable;
(B) dividends or distributions paid exclusively in cash for which an adjustment was effected pursuant to Section 8.05(d);10.05(d) hereof; and
(C) Spin-Offs for which the provisions described in Section 8.05(c)(ii) will apply; and
(D) an issuance solely pursuant to a Common Stock Change Event, as to which the provisions set forth in Section 8.08(a10.04(c)(ii) hereof will apply, then the Conversion Rate will be increased adjusted based on the following formula: where: where CR0 = the Conversion Rate in effect immediately prior to the Open Close of Business on the Ex-Dividend Date record date for such distribution; CR1 = the Conversion Rate in effect immediately after the Open Close of Business on such Ex-Dividend Daterecord date; SP0 = the average of the Last Reported Sale Prices per share of the Common Stock over the ten (10) 10 consecutive Trading Day period ending on, and including, on the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Company's Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the Open of Business on such Ex-Dividend Date. Notwithstanding the foregoing, if “"FMV” " (as defined above) is equal to or greater than the “"SP0” " (as defined above), in lieu of the foregoing increase, the each Holder will receive, for each $1,000 principal amount of this Note outstanding Notes held on the record date for the distribution, at the same time and upon the same terms as holders of the Common Stock, the amount and kind of shares of Capital Stock, evidences of indebtedness, assets or property, rights, options or warrants or other securities that the such Holder would have received if the such Holder had owned a number of shares of Common Stock equal to the Conversion Rate in effect on the record date for such distribution (or in distribution. Any increase made under this Section 10.05(c) will become effective immediately after the case Close of a principal amount or portion of a principal amount that is not a multiple of $1,000, an equivalent pro rata amount)Business on the record date for such distribution. If any such distribution of the type described in this Section 8.05(c)(i) is not so paid or made, or if any rights, options or warrants are not exercised before their expiration date, the Conversion Rate will be readjusted decreased to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(ii) With respect to an adjustment pursuant to this Section 8.05(c10.05(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to an Affiliate, a Subsidiary or other business unit of the Company, and such Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of the transaction) on a national securities exchange or a reasonably comparable non-U.S. equivalent (a “"Spin-Off”"), but excluding an issuance solely pursuant to a Common Stock Change Event as to which the provisions described in Section 8.08(a) apply, the Conversion Rate will be increased based on the following formula: where: where CR0 = the Conversion Rate in effect immediately prior to the Open Close of Business on the Ex-Dividend Date last Trading Day of the Valuation Period for such Spin-Off; CR1 = the Conversion Rate in effect immediately after the Open Close of Business on the last Trading Day of the Valuation Period for such ExSpin-Dividend DateOff; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of Common Stock (determined for purposes of the definition of Last Reported Sale Price as if such Capital Stock or similar equity interest were the Common Stock) over the first ten (10) 10 consecutive Trading Day period after, and including, the Ex-Dividend Date effective date of the Spin-Off (the “"Valuation Period”"); and MP0 = the average of the Last Reported Sale Prices per share of the Common Stock over the Valuation Period. Such adjustment shall become effective immediately after the Open of Business on such Ex-Dividend Date. The adjustment to the Conversion Rate under this Section 8.05(c)(ii10.05(c)(ii) will be calculated as of given effect immediately after the Close of Business on the last Trading Day of the Valuation Period; provided that if the Conversion Date for a Note occurs after the record date for a Spin-Off, but on or prior to the first Trading Day of the Valuation Period but for such Spin-off, the Conversion Date will be given effect postponed until the Business Day immediately following such Trading Day (and the definition of "FMV0" will be modified pursuant to the immediately following proviso); and provided, further, that if the Conversion Date for a Note occurs after the first Trading Day of the Valuation Period for a Spin-Off, but on or before the last Trading Day of such Valuation Period, the reference in the above definition of "FMV0" to "10" will be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the effective date of such Spin-Off to, but excluding, such Conversion Date. For the purposes of this Section 10.05(c) and subsections (a) and (b) of this Section 10.05, any dividend or distribution to which this Section 10.05(c) applies and which dividend or distribution also includes one or both of:
(A) a dividend or distribution of shares of Common Stock to which Section 10.05(a) hereof applies (a "Clause A Distribution"); or
(B) a dividend or distribution of rights, options or warrants to which Section 10.05(b) hereof applies (a "Clause B Distribution"); (any such distribution, a "Multi-Clause Distribution") then (i) the portion of such Multi-Clause Distribution that is not a Clause A Distribution or a Clause B Distribution will be deemed to be a dividend or distribution to which this Section 10.05(c) applies (a "Clause C Distribution"), and any Conversion Rate adjustment required by this Section 10.05(c) with respect to such Clause C Distribution will be made, without considering any shares of Common Stock issuable as part of the portion of such Multi-Clause Distribution that is a Clause A Distribution or a Clause B Distribution, as applicable, (ii) the portion of such Multi-Clause Distribution that is a Clause B Distribution, if any, will be deemed to be distributed immediately after following the Clause C Distribution, and any Conversion Rate adjustment required by Section 10.05(b) hereof with respect to such Clause B Distribution will be made, with any shares of Common Stock issuable as part of the portion of such Multi-Clause Distribution that is a Clause C Distribution deemed to be "outstanding immediately prior to the Open of Business on such record date" for the Expurposes of making such adjustment and (iii) the portion of such Multi-Dividend Date Clause Distribution that is a Clause A Distribution, if any, will be deemed to be distributed immediately following the Clause B Distribution or Clause C Distribution, as the case may be, and any Conversion Rate adjustment required by Section 10.05(a) hereof with respect to such Clause A Distribution will be made, with any shares of Common Stock issuable as part of the Spinportion of such Multi-Off. Notwithstanding anything Clause Distribution that is either a Clause C Distribution or a Clause B Distribution deemed to be "outstanding immediately prior to the contrary herein Open of Business on such record date or in this Note, if necessary, the Company shall delay Open of Business on such Effective Date" for the settlement purposes of any conversion of this Note where the Conversion Date occurs during the Valuation Period until the third (3rd) Business Day after the last day of the Valuation Period. If any distribution of the type described in this Section 8.05(c)(ii) is declared but not so made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to make making such distribution, to the Conversion Rate that would then be in effect if such distribution had not been declaredadjustment.
Appears in 1 contract
Samples: Indenture (Ultrapetrol Bahamas LTD)
Spin Offs and Other Distributed Property. (i) If the Company Guarantor distributes shares of its the Capital StockStock of the Guarantor, evidences of its indebtedness or indebtedness, other assets or property of the Company, Guarantor or rights, options or warrants to acquire the Guarantor’s Capital Stock or other securities of the Company or other securities, Guarantor (the “Distributed Property”) to all or substantially all holders of the Common StockOrdinary Shares, excluding:
(A) dividends, distributions, rights, options or warrants for as to which an adjustment was effected pursuant to Section 8.05(a7.05(a) hereof or 8.05(b), as applicableSection 7.05(b) hereof;
(B) dividends or distributions paid exclusively in cash for as to which an adjustment was effected pursuant to Section 8.05(d)7.05(d) hereof;
(C) Spin-Offs for which any dividends and distributions in connection with a reclassification, change, consolidation, merger, conveyance, transfer, sale, lease or other disposition resulting in the provisions change in the Exchange Consideration as described in Section 8.05(c)(ii) will apply; and7.07;
(D) an issuance solely except as otherwise described above and below under this Section 7.05, rights issued pursuant to a Common Stock Change Event, stockholder rights plan adopted by the Guarantor; or
(E) Spin-Offs as to which the provisions set forth in of Section 8.08(a7.05(c)(ii) will hereof shall apply, then the Conversion Exchange Rate will be increased based on the following formula: ER1 = ER0 × XX0 XX0 – FMV where: CR0 ER0 = the Conversion Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; CR1 ER1 = the Conversion Exchange Rate in effect immediately after the Open of Business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices per share of the Common Stock ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the ten (10) 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Guarantor’s Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants Distributed Property distributed with respect to each outstanding share of Common Stock Ordinary Share on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the Open of Business on such Ex-Dividend Date. Notwithstanding the foregoing, if If “FMV” (as defined above) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase, the each Holder will receive, for in respect of each $1,000 principal amount of this Note outstanding on the record date for the distributionNotes it holds, at the same time and upon the same terms as holders of the Common StockADSs, the amount and kind of shares of Capital Stock, evidences of indebtedness, assets or property, rights, options or warrants or other securities the Distributed Property that the such Holder would have received if the such Holder had owned a number of shares of Common Stock ADSs equal to the Conversion Exchange Rate in effect on the record date Ex-Dividend Date for the distribution. Any increase in the Exchange Rate made under this Section 7.05(c)(i) will become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution (or in the case of a principal amount or portion of a principal amount that is not a multiple of $1,000, an equivalent pro rata amount)distribution. If any such distribution of the type described in this Section 8.05(c)(i) is not so paid or made, or if any rights, options or warrants are not exercised before their expiration date, the Conversion Exchange Rate will shall be readjusted to be the Conversion Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(ii) With respect to an adjustment pursuant to this Section 8.05(c7.05(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock Ordinary Shares of any class or series, or similar equity interest, of or relating to an Affiliate, a Subsidiary or other business unit of the CompanyGuarantor, and such Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of the transactionsuch dividend or other distribution) on a U.S. national securities exchange or a reasonably comparable non-U.S. equivalent (a “Spin-Off”), but excluding an issuance solely pursuant to a Common Stock Change Event as to which the provisions described in Section 8.08(a) apply, the Conversion Exchange Rate will be increased based on the following formula: ER1 = ER0 × FMV0 + MP0 MP0 where: CR0 ER0 = the Conversion Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such the Spin-Off; CR1 ER1 = the Conversion Exchange Rate in effect immediately after the Open of Business on such the Ex-Dividend DateDate for the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock Ordinary Shares applicable to one share of Common Stock (determined for purposes of the definition of Last Reported Sale Price as if such Capital Stock or similar equity interest were the Common Stock) Ordinary Share over the first ten (10) 10 consecutive Trading Day period after, and including, the Ex-Dividend Date effective date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices per share of the Common Stock ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the Valuation Period. Such adjustment shall become effective immediately If a Holder exchanges a Note, Cash Settlement or Combination Settlement applies to such Note, and the first VWAP Trading Day of the Observation Period applicable to such Note occurs after the Open of Business on such Ex-Dividend Date. The adjustment to the Conversion Rate under this Section 8.05(c)(ii) will be calculated as first Trading Day of the Close of Business Valuation Period for a Spin-Off, but on or before the last Trading Day of the Valuation Period for such Spin-Off, the reference in the above definition of “FMV” to “10” shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the effective date of such Spin-Off to, but will be given effect as excluding, the first VWAP Trading Day of immediately such Observation Period. If a Holder exchanges a Note, Cash Settlement or Combination Settlement applies to such Note, and one or more VWAP Trading Days of the Observation Period applicable to such Note occurs on or after the Open of Business on the Ex-Dividend Date of the for a Spin-Off. Notwithstanding anything , but on or prior to the contrary herein or in this Note, if necessary, the Company shall delay the settlement first Trading Day of any conversion of this Note where the Conversion Date occurs during the Valuation Period until for such Spin-Off, such Observation Period will be suspended on the third (3rd) Business first such Trading Day and will resume immediately after the last day first Trading Day of the Valuation Period. If any distribution Period for such Spin-Off, and the reference in the above definition of the type described in this Section 8.05(c)(ii) is declared but not so made, the Conversion Rate “FMV” to “10” shall be immediately readjusted, effective as of the date the Board of Directors determines not deemed replaced with a reference to make such distribution, to the Conversion Rate that would then be in effect if such distribution had not been declared“one” (1).
Appears in 1 contract
Samples: Indenture (Amarin Corp Plc\uk)
Spin Offs and Other Distributed Property. (i) If the Company Parent distributes shares of its the Parent’s Capital Stock, evidences of its indebtedness or indebtedness, other assets or property of the Company, Parent or rights, options or warrants to acquire the Parent’s Capital Stock or other securities of the Company or other securities, Parent (the “Distributed Property”) to all or substantially all holders of the Common StockShares, excluding:
(A) dividends, distributions, rights, options or warrants for as to which an adjustment was effected pursuant to Section 8.05(a7.05(a) hereof or 8.05(b), as applicableSection 7.05(b) hereof;
(B) dividends or distributions paid exclusively in cash for as to which an adjustment was effected pursuant to the provisions of Section 8.05(d)7.05(d) hereof apply;
(C) Spin-Offs for which any dividends and distributions in connection with a Merger Event resulting in the provisions change in the Exchange Consideration as described in Section 8.05(c)(ii) will apply; and7.07;
(D) an issuance solely except as otherwise described under this Section 7.05(h), rights issued pursuant to a Common Stock Change Event, rights plan adopted by the Parent; or
(E) Spin-Offs as to which the provisions set forth in of Section 8.08(a7.05(c)(ii) will hereof shall apply, then the Conversion Exchange Rate will be increased based on the following formula: where: CR0 ER0 = the Conversion Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; CR1 ER1 = the Conversion Exchange Rate in effect immediately after the Open of Business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices per share of the Common Stock Shares over the ten (10) 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Parent’s Board of DirectorsDirectors in good faith) of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants Distributed Property distributed with respect to each outstanding share of Common Stock Share in issue on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the Open of Business on such Ex-Dividend Date. Notwithstanding the foregoing, if If “FMV” (as defined above) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase, the each Holder will receive, for in respect of each $1,000 principal amount of this Note outstanding on the record date for the distributionNotes it holds, at the same time and upon the same terms as holders of the Common StockShares, the amount and kind of shares of Capital Stock, evidences of indebtedness, assets or property, rights, options or warrants or other securities the Distributed Property that the such Holder would have received if the such Holder had owned a number of shares of Common Stock Shares equal to the Conversion Exchange Rate in effect on the record date Ex-Dividend Date for the distribution. Any increase in the Exchange Rate made under this Section 7.05(c)(i) will become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution (or in the case of a principal amount or portion of a principal amount that is not a multiple of $1,000, an equivalent pro rata amount)distribution. If any such distribution of the type described in this Section 8.05(c)(i) is not so paid or made, or if any rights, options or warrants are not exercised before their expiration date, the Conversion Exchange Rate will shall be readjusted to be the Conversion Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(ii) With respect to an adjustment pursuant to this Section 8.05(c7.05(c) where there has been a payment of a dividend or other distribution on the Common Stock Shares of shares of Capital Stock of any class or series, or similar equity interest, of or relating to an Affiliate, a Subsidiary or other business unit of the CompanyParent, and such Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of the transactionsuch dividend or other distribution) on a U.S. national securities exchange or a reasonably comparable non-U.S. equivalent (a “Spin-Off”), but excluding an issuance solely pursuant to a Common Stock Change Event as to which the provisions described in Section 8.08(a) apply, the Conversion Exchange Rate will be increased based on the following formula: where: CR0 ER0 = the Conversion Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such the Spin-Off; CR1 ER1 = the Conversion Exchange Rate in effect immediately after the Open of Business on such the Ex-Dividend DateDate for the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock Shares applicable to one share of Common Stock Share (determined for purposes of by reference to the definition of “Last Reported Sale Price Price” set forth in Section 1.01 hereof as if references therein to Common Shares were to such Capital Stock or similar equity interest were the Common Stockinterest) over the first ten (10) 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices per share of the Common Stock Shares over the Valuation Period. Such The adjustment to the Exchange Rate under the preceding paragraph will be determined on the last Trading Day of the Valuation Period, but given effect as of the Ex-Dividend Date for the Spin-Off; provided that (x) in respect of any exchange of Notes for which Physical Settlement is applicable, if the relevant Exchange Date occurs during the Valuation Period, references in this Section 7.05(c)(ii) with respect to 10 Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off and the Exchange Date in determining the Exchange Rate and (y) in respect of any exchange of Notes for which Cash Settlement or Combination Settlement is applicable, for any Trading Day that falls within the relevant Observation Period for such exchange and within the Valuation Period, references in the preceding paragraph with respect to 10 Trading Days shall be deemed to be replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date for such Spin-Off and such Trading Day in determining the Exchange Rate as of such Trading Day. In addition, if the Ex-Dividend Date for such Spin-Off is after the 10th Trading Day immediately preceding, and including, the end of any Observation Period in respect of an exchange of Notes, references in the preceding paragraph to 10 Trading Days will be deemed to be replaced, solely in respect of that exchange, with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for the Spin-Off to, and including, the last VWAP Trading Day of such Observation Period. If any dividend or distribution that constitutes a Spin-Off is not so paid, the Exchange Rate shall be decreased, effective as of the date the Parent’s Board of Directors determines not to pay such dividends or distributions, to the Exchange Rate that would then be in effect if such dividend or distribution had not been declared. For purposes of this Section 7.05(c) (and subject in all respect to Section 7.05(h)), rights, options or warrants distributed by the Parent to all holders of the Common Shares entitling them to subscribe for or purchase shares of the Parent’s Capital Stock, including the Common Shares (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”): (A) are deemed to be transferred with such Common Shares; (B) are not exercisable; and (C) are also issued in respect of future issuances of the Common Shares, shall be deemed not to have been distributed for purposes of this Section 7.05(c) (and no adjustment to the Exchange Rate under this Section 7.05(c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Exchange Rate shall be made under this Section 7.05(c). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become effective exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the Ex-Dividend Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately after preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Exchange Rate under this Section 7.05(c) was made, (1) in the case of any such rights, options or warrants that shall all have been purchased without exercise by any holders thereof, upon such final purchase (x) the Exchange Rate shall be readjusted as if such rights, options or warrants had not been issued and (y) the Exchange Rate shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share purchase price received by a holder or holders of the Common Shares with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Shares as of the date of such purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated (or deemed to have expired or been terminated pursuant to the immediately preceding sentence) without exercise by any holders thereof, the Exchange Rate shall be readjusted as if such rights, options and warrants had not been issued (to the extent any adjustment to the Exchange Rate was made in connection with such issuance). For purposes of Section 7.05(a) hereof, Section 7.05(b) hereof and this Section 7.05(c), if any dividend or distribution to which this Section 7.05(c) applies includes one or both of:
(A) a dividend or distribution of Common Shares to which Section 7.05(a) hereof also applies (the “Clause A Distribution”); or
(B) a dividend or distribution of rights, options or warrants to which Section 7.05(b) hereof also applies (the “Clause B Distribution”), then, in either case, (i) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution to which this Section 7.05(c) applies (the “Clause C Distribution”) and any Exchange Rate adjustment required to be made under this Section 7.05(c) with respect to such Clause C Distribution shall then be made, (ii) the Clause B Distribution, if any, shall be deemed to immediately follow the Clause C Distribution and any Exchange Rate adjustment required by Section 7.05(b) hereof with respect thereto shall then be made, except that, if determined by the Parent, (A) the “Ex-Dividend Date” of the Clause B Distribution and the Clause A Distribution, if any, shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (B) any Common Shares included in the Clause A Distribution or the Clause B Distribution shall not be deemed to be “outstanding immediately prior to the Open of Business on such Ex-Dividend Date. The adjustment ” within the meaning of Section 7.05(b) hereof, and (iii) the Clause A Distribution, if any, shall be deemed to immediately follow the Conversion Rate under this Section 8.05(c)(iiClause C Distribution or the Clause B Distribution, as the case may be, except that, if determined by the Parent, (A) will be calculated as the “Ex-Dividend Date” of the Close of Business on Clause A Distribution and the last Trading Day of the Valuation Period but will Clause B Distribution, if any, shall be given effect as of immediately after the Open of Business on deemed to be the Ex-Dividend Date of the Spin-Off. Notwithstanding anything Clause C Distribution, and any Common Shares included in the Clause A distribution shall not be deemed to be “outstanding immediately prior to the contrary herein Open of Business on such Ex-Dividend Date” or in this Note, if necessary, such Effective Date within the Company shall delay the settlement meaning of any conversion of this Note where the Conversion Date occurs during the Valuation Period until the third (3rdSection 7.05(a) Business Day after the last day of the Valuation Period. If any distribution of the type described in this Section 8.05(c)(ii) is declared but not so made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to make such distribution, to the Conversion Rate that would then be in effect if such distribution had not been declaredhereof.
Appears in 1 contract
Samples: Indenture (Atlas Corp.)
Spin Offs and Other Distributed Property. (i) If the Company Guarantor distributes shares of its the Capital StockStock of the Guarantor, evidences of its indebtedness or indebtedness, other assets or property of the Company, Guarantor or rights, options or warrants to acquire the Guarantor’s Capital Stock or other securities of the Company or other securities, Guarantor (the “Distributed Property”) to all or substantially all holders of the Common StockOrdinary Shares, excluding:
(A) dividends, distributions, rights, options or warrants for as to which an adjustment was effected pursuant to Section 8.05(a7.05(a) hereof or 8.05(b), as applicableSection 7.05(b) hereof;
(B) dividends or distributions paid exclusively in cash for as to which an adjustment was effected pursuant to Section 8.05(d)7.05(d) hereof;
(C) Spin-Offs for which any dividends and distributions in connection with a reclassification, change, consolidation, merger, conveyance, transfer, sale, lease or other disposition resulting in the provisions change in the Exchange Consideration as described in Section 8.05(c)(ii) will apply; and7.07;
(D) an issuance solely except as otherwise described above and below under this Section 7.05, rights issued pursuant to a Common Stock Change Event, stockholder rights plan adopted by the Guarantor; or
(E) Spin-Offs as to which the provisions set forth in of Section 8.08(a7.05(c)(ii) will hereof shall apply, then the Conversion Exchange Rate will be increased based on the following formula: ER1 = ER0 x SP0 SP0 - FMV where: CR0 ER0 = the Conversion Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; CR1 ER1 = the Conversion Exchange Rate in effect immediately after the Open of Business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices per share of the Common Stock ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the ten (10) 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Guarantor’s Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants Distributed Property distributed with respect to each outstanding share of Common Stock Ordinary Share on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the Open of Business on such Ex-Dividend Date. Notwithstanding the foregoing, if If “FMV” (as defined above) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase, the each Holder will receive, for in respect of each $1,000 principal amount of this Note outstanding on the record date for the distributionNotes it holds, at the same time and upon the same terms as holders of the Common StockADSs, the amount and kind of shares of Capital Stock, evidences of indebtedness, assets or property, rights, options or warrants or other securities the Distributed Property that the such Holder would have received if the such Holder had owned a number of shares of Common Stock ADSs equal to the Conversion Exchange Rate in effect on the record date Ex-Dividend Date for the distribution. Any increase in the Exchange Rate made under this Section 7.05(c)(i) will become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution (or in the case of a principal amount or portion of a principal amount that is not a multiple of $1,000, an equivalent pro rata amount)distribution. If any such distribution of the type described in this Section 8.05(c)(i) is not so paid or made, or if any rights, options or warrants are not exercised before their expiration date, the Conversion Exchange Rate will shall be readjusted to be the Conversion Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(ii) With respect to an adjustment pursuant to this Section 8.05(c7.05(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock Ordinary Shares of any class or series, or similar equity interest, of or relating to an Affiliate, a Subsidiary or other business unit of the CompanyGuarantor, and such Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of the transactionsuch dividend or other distribution) on a U.S. national securities exchange or a reasonably comparable non-U.S. equivalent (a “Spin-Off”), but excluding an issuance solely pursuant to a Common Stock Change Event as to which the provisions described in Section 8.08(a) apply, the Conversion Exchange Rate will be increased based on the following formula: ER1 = ER0 x FMV0 + MP0 MP0 where: CR0 ER0 = the Conversion Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such the Spin-Off; CR1 ER1 = the Conversion Exchange Rate in effect immediately after the Open of Business on such the Ex-Dividend DateDate for the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock Ordinary Shares applicable to one share of Common Stock (determined for purposes of the definition of Last Reported Sale Price as if such Capital Stock or similar equity interest were the Common Stock) Ordinary Share over the first ten (10) 10 consecutive Trading Day period after, and including, the Ex-Dividend Date effective date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices per share of the Common Stock ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the Valuation Period. Such adjustment shall become effective immediately after the Open of Business on such Ex-Dividend Date. The adjustment to the Conversion Rate under this Section 8.05(c)(ii) will be calculated as of the Close of Business on the last Trading Day of the Valuation Period but will be given effect as of immediately after the Open of Business on the Ex-Dividend Date of the Spin-Off. Notwithstanding anything to the contrary herein or in this Note, if necessary, the Company shall delay the settlement of any conversion of this Note where the Conversion Date occurs during the Valuation Period until the third (3rd) Business Day after the last day of the Valuation Period. If any distribution of the type described in this Section 8.05(c)(ii) is declared but not so made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to make such distribution, to the Conversion Rate that would then be in effect if such distribution had not been declared.
Appears in 1 contract
Samples: Indenture (Amarin Corp Plc\uk)
Spin Offs and Other Distributed Property. (i) If the Company distributes shares of its Capital Stock, evidences of its indebtedness or other assets or property of the Company, or rights, options or warrants to acquire Capital Stock of the Company or other securities, to all or substantially all holders of the Common Stock, excluding:
(A) dividends, distributions, rights, options or warrants for which an adjustment was effected pursuant to Section 8.05(a) or Section 8.05(b), as applicable;
(B) dividends or distributions paid exclusively in cash for which an adjustment was effected pursuant to Section 8.05(d);
(C) Spin-Offs for which the provisions described in Section 8.05(c)(ii) will apply; and
(D) an issuance solely pursuant to a Common Stock Change Event, as to which the provisions set forth in Section 8.08(a) will apply, then the Conversion Rate will be increased based on the following formula: where: CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices per share of the Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the Open of Business on such Ex-Dividend Date. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase, the Holder will receive, for each $1,000 principal amount of this Note outstanding on the record date for the distribution, at the same time and upon the same terms as holders of the Common Stock, the amount and kind of shares of Capital Stock, evidences of indebtedness, assets or property, rights, options or warrants or other securities that the Holder would have received if the Holder had owned a number of shares of Common Stock equal to the Conversion Rate in effect on the record date for such distribution (or in the case of a principal amount or portion of a principal amount that is not a multiple of $1,000, an equivalent pro rata amount). If any distribution of the type described in this Section 8.05(c)(i) is not so paid or made, or if any rights, options or warrants are not exercised before their expiration date, the Conversion Rate will be readjusted to be the Conversion Rate that would then be in effect if such distribution had not been declared.
(ii) With respect to an adjustment pursuant to this Section 8.05(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to an Affiliate, a Subsidiary or other business unit of the Company, and such Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of the transaction) on a national securities exchange or a reasonably comparable non-U.S. equivalent (a “Spin-Off”), but excluding an issuance solely pursuant to a Common Stock Change Event as to which the provisions described in Section 8.08(a) apply, the Conversion Rate will be increased based on the following formula: where: CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such Spin-Off; CR1 = the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of Common Stock (determined for purposes of the definition of Last Reported Sale Price as if such Capital Stock or similar equity interest were the Common Stock) over the first ten (10) consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices per share of the Common Stock over the Valuation Period. Such adjustment shall become effective immediately after the Open of Business on such Ex-Dividend Date. The adjustment to the Conversion Rate under this Section 8.05(c)(ii) will be calculated as of the Close of Business on the last Trading Day of the Valuation Period but will be given effect as of immediately after the Open of Business on the Ex-Dividend Date of the Spin-Off. Notwithstanding anything to the contrary herein or in this Note, if necessary, the Company shall delay the settlement of any conversion of this Note where the Conversion Date occurs during the Valuation Period until the third (3rd) Business Day after the last day of the Valuation Period. If any distribution of the type described in this Section 8.05(c)(ii) is declared but not so made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to make such distribution, to the Conversion Rate that would then be in effect if such distribution had not been declared.
Appears in 1 contract
Samples: Note Purchase Agreement (Xtant Medical Holdings, Inc.)
Spin Offs and Other Distributed Property. (i) If the Company distributes shares of its Capital Stock, evidences of its indebtedness or other assets or property of the Company, or rights, options or warrants to acquire Capital Stock of the Company or other securities, to all or substantially all holders of the Common Stock, excluding:
(A) dividends, distributions, rights, options or warrants for which an adjustment was effected pursuant to Section 8.05(a10.05(a) hereof or 8.05(b)Section 10.05(b) hereof, as applicable;
(B) dividends or distributions paid exclusively in cash for which an adjustment was effected pursuant to Section 8.05(d);10.05(d) hereof; and
(C) Spin-Offs for which the provisions described in Section 8.05(c)(ii) will apply; and
(D) an issuance solely pursuant to a Common Stock Change Event, as to which the provisions set forth in Section 8.08(a10.05(c)(ii) hereof will apply, then the Conversion Rate will be increased based on the following formula: where: where CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; CR1 = the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices per share of the Common Stock over the ten (10) 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Company’s Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the Open of Business on such Ex-Dividend Date. Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase, the each Holder will receive, for each $1,000 principal amount of this Note outstanding Notes held on the record date for the distribution, at the same time and upon the same terms as holders of the Common Stock, the amount and kind of shares of Capital Stock, evidences of indebtedness, assets or property, rights, options or warrants or other securities that the such Holder would have received if the such Holder had owned a number of shares of Common Stock equal to the Conversion Rate in effect on the record date for such distribution (or in the case of a principal amount or portion of a principal amount that is not a multiple of $1,000, an equivalent pro rata amount)distribution. If any such distribution of the type described in this Section 8.05(c)(i) is not so paid or made, or if any rights, options or warrants are not exercised before their expiration date, the Conversion Rate will be readjusted to be the Conversion Rate that would then be in effect if such distribution had not been declared.
(ii) With respect to an adjustment pursuant to this Section 8.05(c10.05(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to an Affiliate, a Subsidiary or other business unit of the Company, and such Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of the transaction) on a national securities exchange or a reasonably comparable non-U.S. equivalent (a “Spin-Off”), but excluding an issuance solely pursuant to a Common Stock Change Event as to which the provisions described in Section 8.08(a) apply, the Conversion Rate will be increased based on the following formula: where: where CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such Spin-Off; CR1 = the Conversion Rate in effect immediately after the Open of Business on such Ex-Dividend Date; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of Common Stock (determined for purposes of the definition of “Last Reported Sale Price Price” as if such Capital Stock or similar equity interest were the Common Stock) over the first ten (10) 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices per share of the Common Stock over the Valuation Period. Such adjustment shall become effective immediately after the Open of Business on such Ex-Dividend Date. The adjustment to the Conversion Rate under this Section 8.05(c)(ii10.05(c)(ii) will be calculated as of the Close of Business on the last Trading Day of the Valuation Period but will be given effect as of immediately after the Open of Business on the Ex-Dividend Date of the Spin-Off, with retroactive effect. Notwithstanding anything to the contrary herein or in this Note, if necessary, the The Company shall delay the settlement of any conversion of this Note Notes where the Conversion Date occurs during the Valuation Period until the third (3rd) Business Day after the last day of the Valuation Period. If any distribution of the type described in this Section 8.05(c)(ii10.05(c)(ii) is declared but not so made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to make such distribution, to the Conversion Rate that would then be in effect if such distribution had not been declared. For the purposes of this Section 10.05(c) and subsections (a) and (b) of this Section 10.05, any dividend or distribution to which this Section 10.05(c) applies and which dividend or distribution also includes one or both of:
(A) a dividend or distribution of shares of Common Stock to which Section 10.05(a) hereof applies (a “Clause A Distribution”); or
(B) a dividend or distribution of rights, options or warrants to which Section 10.05(b) hereof applies (a “Clause B Distribution”) (any such distribution, a “Multi-Clause Distribution”), then (i) the portion of such Multi-Clause Distribution that is not a Clause A Distribution or a Clause B Distribution will be deemed to be a dividend or distribution to which this Section 10.05(c) applies (a “Clause C Distribution”), and any Conversion Rate adjustment required by this Section 10.05(c) with respect to such Clause C Distribution will be made without considering any shares of Common Stock issuable as part of the portion of such Multi-Clause Distribution that is a Clause A Distribution or a Clause B Distribution, as applicable, (ii) the portion of such Multi-Clause Distribution that is a Clause B Distribution, if any, will be deemed to be distributed immediately following the Clause C Distribution, and any Conversion Rate adjustment required by Section 10.05(b) hereof with respect to such Clause B Distribution will be made, with any shares of Common Stock issuable as part of the portion of such Multi-Clause Distribution that is a Clause C Distribution deemed to be “outstanding immediately prior to the Open of Business on such Ex-Dividend Date” for the purposes of making such adjustment and (iii) the portion of such Multi-Clause Distribution that is a Clause A Distribution, if any, will be deemed to be distributed immediately following the Clause B Distribution or Clause C Distribution, as the case may be, and any Conversion Rate adjustment required by Section 10.05(a) hereof with respect to such Clause A Distribution will be made, with any shares of Common Stock issuable as part of the portion of such Multi-Clause Distribution that is either a Clause C Distribution or a Clause B Distribution deemed to be “outstanding immediately prior to the Open of Business on such Ex-Dividend Date or Effective Date” for the purposes of making such adjustment.
Appears in 1 contract
Samples: Indenture (Layne Christensen Co)
Spin Offs and Other Distributed Property. (i) If the Company Issuer distributes shares of its Capital Stock, evidences of its indebtedness or other assets of its assets, securities or property property, excluding (i) dividends or distributions covered by Sections 10.05(a) and 10.05(b), (ii) dividends or distributions paid exclusively in cash covered by Section 10.05(d), and (iii) Spin-Offs to which the provisions set forth in the latter portion of the Companythis Section 10.05(c) shall apply (any of such shares of Capital Stock, or rights, options or warrants to acquire Capital Stock of the Company indebtedness or other securitiesassets, securities or property, the “Distributed Property”), to all or substantially all holders of the shares of Common Stock, excluding:
(A) dividendsthen, distributions, rights, options or warrants for which an adjustment was effected pursuant to Section 8.05(a) or 8.05(b), as applicable;
(B) dividends or distributions paid exclusively in cash for which an adjustment was effected pursuant to Section 8.05(d);
(C) Spin-Offs for which the provisions described in Section 8.05(c)(ii) will apply; and
(D) an issuance solely pursuant to a Common Stock Change Event, as to which the provisions set forth in Section 8.08(a) will apply, then each such case the Conversion Rate will shall be increased based on the following formula: where: where CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; CR1 CR’ = the Conversion Rate in effect immediately after the Open of Business on such the Ex-Dividend DateDate for such distribution; SP0 = the average of the Last Reported Sale Prices per share of the Common Stock over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value Fair Market Value (as determined by the Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options securities or warrants distributed property distributable with respect to each outstanding share shares of Common Stock as of the Open of Business on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the Open of Business on such Ex-Dividend Date. Notwithstanding the foregoing, if “FMV” (as defined used in the formula above) is equal to or greater than the “SP0” (as defined used in the formula above), in lieu of the foregoing increase, the Holder will each holder of Notes shall receive, for each $1,000 principal amount of this Note outstanding on the record date for the distributionNotes it holds, at the same time and upon the same terms as the holders of the Common Stock, the amount and kind of shares of Capital Stock, evidences of indebtedness, assets or property, rights, options or warrants or other securities Distributed Property that the Holder such holder would have received as if the Holder such holder had owned a number of shares of Common Stock equal to the Conversion Rate in effect on the record date for such distribution (or in distribution. Any increase made under the case of a principal amount or portion of a principal amount that is not a multiple this Section 10.05(c) above shall become effective immediately after the Open of $1,000, an equivalent pro rata amount)Business on the Ex-Dividend Date for such distribution. If any such distribution of the type described in this Section 8.05(c)(i) is not so paid or made, or if any rights, options or warrants are not exercised before their expiration date, the Conversion Rate will shall be readjusted decreased to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(ii) . With respect to an adjustment pursuant to this Section 8.05(c10.05(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to an Affiliate, a Subsidiary or other business unit of the CompanyIssuer, and where such Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of the transactionSpin-Off) on a U.S. national securities exchange or a reasonably comparable non-U.S. equivalent (a “Spin-Off”), but excluding an issuance solely pursuant to a Common Stock Change Event as to which the provisions described in Section 8.08(a) apply, the Conversion Rate will shall be increased based on the following formula: where: where CR0 = the Conversion Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such Spin-Off; CR1 CR’ = the Conversion Rate in effect immediately after the Open of Business on such the Ex-Dividend DateDate for such Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of Common Stock (determined for purposes of the definition of “Last Reported Sale Price Price” as if such Capital Stock or similar equity interest were the Common Stock) applicable to one share of Common Stock over the first ten (10) consecutive Trading Day period after, and includingbut excluding, the Ex-Dividend Date effective date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices per share of the Common Stock over the Valuation Period. Such For purposes of the second adjustment formula set forth in this Section 10.05(c), (i) the Last Reported Sale Price of any Capital Stock or similar equity interest shall become effective immediately after be calculated in a manner analogous to that used to calculate the Open Last Reported Sale Price of Business the Common Stock in the definition of “Last Reported Sale Price” set forth in Section 1.01 hereof, (ii) whether a day is a Trading Day (and whether a day is a Scheduled Trading Day and whether a Market Disruption Event has occurred) for such Capital Stock or similar equity interest shall be determined in a manner analogous to that used to determine whether a day is a Trading Day (or whether a day is a Scheduled Trading Day and whether a Market Disruption Event has occurred) for the Common Stock, and (iii) whether a day is a Trading Day to be included in a Valuation Period will be determined based on whether a day is a Trading Day for both the Common Stock and such Ex-Dividend DateCapital Stock or similar equity interest. The Subject in all respects to Section 10.05(g), rights, options or warrants distributed by the Issuer to all holders of its Common Stock entitling the holders thereof to subscribe for or purchase shares of the Issuer’s Capital Stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this Section 10.05(c) (and no adjustment to the Conversion Rate under this Section 8.05(c)(ii10.05(c) will be calculated required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 10.05(c). If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Ex-Dividend Date with respect to new rights, options or warrants with such rights (and a termination or expiration of the existing rights, options or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 10.05(c) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the Close date of Business on such redemption or repurchase, and (2) in the last Trading Day case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights, options or warrants had not been issued. For purposes of Section 10.05(a), Section 10.05(b) and this Section 10.05(c), if any dividend or distribution to which this Section 10.05(c) is applicable also includes one or both of:
(i) a dividend or distribution of shares of Common Stock to which Section 10.05(a) is applicable (the “Clause A Distribution”); or
(ii) an issuance of rights, options or warrants entitling holders of the Valuation Period but will Common Stock to subscribe for or purchase shares of the Common Stock to which Section 10.05(b) is applicable (the “Clause B Distribution”), then (1) such dividend or distribution, other than the Clause A Distribution and the Clause B Distribution, shall be given effect as deemed to be a dividend or distribution to which this Section 10.05(c) is applicable (the “Clause C Distribution”) and any Conversion Rate adjustment required by this Section 10.05(c) with respect to such Clause C Distribution shall then be made and (2) the Clause A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause C Distribution and any Conversion Rate adjustment required by Section 10.05(a) and Section 10.05(b) with respect thereto shall then be made, except that, if determined by the Board of immediately after the Open of Business on Directors (I) the Ex-Dividend Date of the SpinClause A Distribution and the Clause B Distribution shall be deemed to be the Ex-Off. Notwithstanding anything Dividend Date of the Clause C Distribution and (II) any Common Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior to the contrary herein open of business on the Ex-Dividend Date for such dividend or in this Notedistribution, if necessaryor the open of business on the effective date of such share split or share combination, as the Company shall delay case may be” within the settlement meaning of any conversion Section 10.05(a) or “outstanding immediately prior to the open of this Note where business on the Conversion Ex-Dividend Date occurs during the Valuation Period until the third (3rd) Business Day after the last day of the Valuation Period. If any distribution of the type described in this Section 8.05(c)(ii) is declared but not so made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to make for such distribution, to ” within the Conversion Rate that would then be in effect if such distribution had not been declaredmeaning of Section 10.05(b).
Appears in 1 contract
Samples: Restructuring Support, Forbearance, and Settlement Agreement (CAESARS ENTERTAINMENT Corp)
Spin Offs and Other Distributed Property. (i) If the Company Guarantor distributes shares of its the Capital StockStock of the Guarantor, evidences of its indebtedness or indebtedness, other assets or property of the Company, Guarantor or rights, options or warrants to acquire the Guarantor’s Capital Stock or other securities of the Company or other securities, Guarantor (the “Distributed Property”) to all or substantially all holders of the Common StockOrdinary Shares, excluding:
(A) dividends, distributions, rights, options or warrants for as to which an adjustment was effected pursuant to Section 8.05(a7.05(a) hereof or 8.05(b), as applicableSection 7.05(b) hereof;
(B) dividends or distributions paid exclusively in cash for as to which an adjustment was effected pursuant to Section 8.05(d)7.05(d) hereof;
(C) Spin-Offs for which any dividends and distributions in connection with a reclassification, change, consolidation, merger, conveyance, transfer, sale, lease or other disposition resulting in the provisions change in the Exchange Consideration as described in Section 8.05(c)(ii) will apply; and7.07;
(D) an issuance solely except as otherwise described above and below under this Section 7.05, rights issued pursuant to a Common Stock Change Event, stockholder rights plan adopted by the Guarantor; or
(E) Spin-Offs as to which the provisions set forth in of Section 8.08(a7.05(c)(ii) will hereof shall apply, then the Conversion Exchange Rate will be increased based on the following formula: ER1 = ER0 x XX0 XX0 - FMV where: CR0 ER0 = the Conversion Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such distribution; CR1 ER1 = the Conversion Exchange Rate in effect immediately after the Open of Business on such Ex-Dividend Date; SP0 = the average of the Last Reported Sale Prices per share of the Common Stock ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the ten (10) 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and FMV = the fair market value (as determined by the Guarantor’s Board of Directors) of the shares of Capital Stock, evidences of indebtedness, assets, property, rights, options or warrants Distributed Property distributed with respect to each outstanding share of Common Stock Ordinary Share on the Ex-Dividend Date for such distribution. Such adjustment shall become effective immediately after the Open of Business on such Ex-Dividend Date. Notwithstanding the foregoing, if If “FMV” (as defined above) is equal to or greater than the “SP0” (as defined above), in lieu of the foregoing increase, the each Holder will receive, for in respect of each $1,000 principal amount of this Note outstanding on the record date for the distributionNotes it holds, at the same time and upon the same terms as holders of the Common StockADSs, the amount and kind of shares of Capital Stock, evidences of indebtedness, assets or property, rights, options or warrants or other securities the Distributed Property that the such Holder would have received if the such Holder had owned a number of shares of Common Stock ADSs equal to the Conversion Exchange Rate in effect on the record date Ex-Dividend Date for the distribution. Any increase in the Exchange Rate made under this Section 7.05(c)(i) will become effective immediately after the Open of Business on the Ex-Dividend Date for such distribution (or in the case of a principal amount or portion of a principal amount that is not a multiple of $1,000, an equivalent pro rata amount)distribution. If any such distribution of the type described in this Section 8.05(c)(i) is not so paid or made, or if any rights, options or warrants are not exercised before their expiration date, the Conversion Exchange Rate will shall be readjusted to be the Conversion Exchange Rate that would then be in effect if such dividend or distribution had not been declared.
(ii) With respect to an adjustment pursuant to this Section 8.05(c7.05(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock Ordinary Shares of any class or series, or similar equity interest, of or relating to an Affiliate, a Subsidiary or other business unit of the CompanyGuarantor, and such Capital Stock or similar equity interest is listed or quoted (or will be listed or quoted upon the consummation of the transactionsuch dividend or other distribution) on a U.S. national securities exchange or a reasonably comparable non-U.S. equivalent (a “Spin-Off”), but excluding an issuance solely pursuant to a Common Stock Change Event as to which the provisions described in Section 8.08(a) apply, the Conversion Exchange Rate will be increased based on the following formula: ER1 = ER0 x FMV0 + MP0 MP0 where: CR0 ER0 = the Conversion Exchange Rate in effect immediately prior to the Open of Business on the Ex-Dividend Date for such the Spin-Off; CR1 ER1 = the Conversion Exchange Rate in effect immediately after the Open of Business on such the Ex-Dividend DateDate for the Spin-Off; FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock Ordinary Shares applicable to one share of Common Stock (determined for purposes of the definition of Last Reported Sale Price as if such Capital Stock or similar equity interest were the Common Stock) Ordinary Share over the first ten (10) 10 consecutive Trading Day period after, and including, the Ex-Dividend Date effective date of the Spin-Off (the “Valuation Period”); and MP0 = the average of the Last Reported Sale Prices per share of the Common Stock ADSs (divided by the number of Ordinary Shares represented by one ADS on each such Trading Day) over the Valuation Period. Such adjustment shall become effective immediately after the Open of Business on such Ex-Dividend Date. The adjustment to the Conversion Rate under this Section 8.05(c)(ii) will be calculated as of the Close of Business on the last Trading Day of the Valuation Period but will be given effect as of immediately after the Open of Business on the Ex-Dividend Date of the Spin-Off. Notwithstanding anything to the contrary herein or in this Note, if necessary, the Company shall delay the settlement of any conversion of this Note where the Conversion Date occurs during the Valuation Period until the third (3rd) Business Day after the last day of the Valuation Period. If any distribution of the type described in this Section 8.05(c)(ii) is declared but not so made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to make such distribution, to the Conversion Rate that would then be in effect if such distribution had not been declared.
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Samples: Indenture (Amarin Corp Plc\uk)
