Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows: (a) In case Company shall (i) pay a dividend in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock into a greater number of shares of Class A common stock or (iv) combine its outstanding shares of Class A common stock into a smaller number of shares of Class A common stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of this Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which he would have owned immediately following such action had the Note been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In case Company shall issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors. (c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
Appears in 7 contracts
Sources: Modification Agreement (Easylink Services Corp), Modification Agreement (Abi Zeid George), Modification Agreement (Easylink Services Corp)
Adjustment of Conversion Price. The Conversion Price Unless otherwise specified as contemplated by Section 301 for Debt Securities of such series, the conversion price for Debt Securities convertible into Common Shares shall be subject to adjustment adjusted from time to time as follows:
(a) In case the Company shall (ix) pay a dividend in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (ii) make a distribution on Common Shares in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Shares, (iiiy) subdivide its the outstanding shares of Class A common stock Common Shares into a greater number of shares of Class A common stock or (ivz) combine its the outstanding shares of Class A common stock Common Shares into a smaller number of shares of Class A common stockshares, the Conversion Price in effect immediately prior to conversion price for the Debt Securities of such action series shall be adjusted so that the holder Holder of this Note any such Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock Common Shares which he would have owned immediately following or have been entitled to receive after the happening of any of the events described above had such action had the Note Security been converted immediately prior theretoto the record date in the case of a dividend or the effective date in the case of subdivision or combination. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution dividend, except as provided in subsection (h) below, and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights, options rights or warrants to all holders of Class A common stock Common Shares entitling them (for a period expiring within 45 days after the record date mentioned below) to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) Common Shares at a price per share (or having a conversion price per share) less than the Current Market Price current market price per share of Common Shares (as determined pursuant to defined for purposes of this subsection (fb) in subsection (e) below) of the Class A common stock on ), at the record date for determining the holders determination of the Class A common stock stockholders entitled to receive such rights, options rights or warrants, the Conversion Price conversion price in affect immediately prior thereto shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price conversion price in effect immediately prior to the date of issuance of such record date rights or warrants by a fraction fraction, the numerator of which the numerator shall be the number of shares Common Shares outstanding on the date of Class A common stock outstanding as issuance of the close of business on such record date rights or warrants plus the number of shares of Class A common stock Common Shares which the aggregate offering price of the total number of shares of Class A common stock Common Shares so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below)current market price, and the denominator of which the denominator shall be the number of shares of Class A common stock Common Shares outstanding on the date of issuance of such record date rights or warrants plus the number of additional shares Common Shares receivable upon exercise of Class A common stock so offered for subscription such rights or purchase (or into which the convertible securities so offered are convertible)warrants. Such adjustments adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately immediately, except as provided in subsection (h) below, after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options rights or warrants a entitle the holders Holders of the Debt Securities of such series to subscribe for or purchase shares of Class A common stock Common Shares at less than the Current Market Pricesuch current market price, and in determining the aggregate offering price of such shares of Class A common stockCommon Shares, there shall be taken into account any consideration received by the Company for such rights, warrants, rights or optionswarrants plus the exercise price thereof, the value of such considerationconsideration or exercise price, as the case may be, if any, other than cash, to be determined by the Board of Directors.
(c) In case the Company shall distribute to all holders of Class A common stock Common Shares any shares of capital stock of the Company (other than Class A common stock), Common Shares) or evidences of indebtedness, cash, rights, options its indebtedness or assets (excluding cash dividends or distributions paid from retained earnings of the Company) or rights or warrants entitling the holders thereof to subscribe for or purchase any of its securities (other than rights, options excluding those rights or warrants described referred to in subsection (b) above) or other assets (including securities any of Persons other than Company but excluding (i) dividends or distributions paid exclusively the foregoing being herein in cash except as described in this subsection (dc) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with called the consolidation, merger or transfer of assets covered by Section 9.11"Special Debt Securities"), then then, in each such case case, unless the Conversion Price Company elects to reserve such Special Debt Securities for distribution to the Holders of Debt Securities of such series upon the conversion so that any such Holder converting such Debt Securities will receive upon such conversion, in addition to the Common Shares to which such Holder is entitled the amount and kind of Special Debt Securities which such Holder would have received if such Holder had, immediately prior to the record date for the distribution of the Special Debt Securities, converted Debt Securities into Common shares, the conversion price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price conversion price in effect affect immediately prior to the date of such distribution by a fraction the numerator of which the numerator shall be the Current Market Price current market price per share (determined as provided defined for purpose of this subsection (c) in subsection (fe) below) of the Class A common stock Common Shares on the record date mentioned below above less the then fair market value on such record date (as determined by the Board of Directors, whose determination shall, if made in good faith, be conclusive of the portion of the Special Debt Securities so distributed applicable to one Common Share, and the denominator of which shall be conclusive evidence of such the current market price per Common Shares (as defined in subsection (e) below); PROVIDED, HOWEVER, that in the event the then fair market value and described in a board resolution(as so determined) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets Special Debt Securities so distributed applicable to one share of Class A common stock Common Share is equal to or greater than the current market price per Common Shares (determined on the basis of the number of shares of the Class A common stock outstanding as defined in subsection (e) below) on the record date)date mentioned above, and in lieu of which the denominator foregoing adjustment, adequate provision shall be made so that each Holder of Debt Securities of such Current Market Price series shall have the right to receive the amount and kind of Special Debt Securities such holder would have received had he converted such Debt Securities immediately prior to the record date for the distribution of the Class A common stockSpecial Debt Securities. Such adjustment shall become effective immediately immediately, except as provided in subsection (h) below, after the record date for the determination of the holders of Class A common stock stockholders entitled to receive such distribution. Notwithstanding .
(d) If, pursuant to subsection (b) or (c) above, the foregoingnumber of Common Shares shall have been adjusted because the Company has declared a dividend, or made a distribution, on the outstanding Common Shares in case the form of any right or warrant to purchase securities of the Company, or the Company has issued any such right or warrant, then, upon the expiration of any such unexercised right or unexercised warrant, the conversion price shall distribute rightsforthwith be adjusted to equal the conversion price that would have applied had such right or warrant never been declared, options distributed or warrants to subscribe for additional shares issued.
(e) For the purpose of Company's capital stock (other than rights, options or warrants referred to in any computation under subsection (b) above, the current market price per Common Share on any date shall be deemed to be the average of the reported last sales prices for the thirty consecutive Trading Days (as defined below) ("Rights") to all holders commencing forty-five Trading Days before the date in question. For the purpose of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this computation under subsection (c) of Section 9.6 make proper provision so that above, the holder current market price per Common Share on any date shall be deemed to be the average of the Note who converts reported last sales prices for the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to ten consecutive Trading Days before the date in question. The reported last sales price for the distribution to the holders each day (whether for purposes of Rights of separate certificates evidencing such Rights subsection (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (iib) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c)) shall be the reported last sales price, regular way, or, in case no sale takes place on such day, the average of this Sectionthe reported closing bid and asked prices, regular way, in either case as reported on the New York Shares Exchange Composite Tape or, if the Common Shares are not listed or admitted to trading an the New York Shares Exchange, on the principal national securities exchange on which the Common Shares are listed or admitted to trading or, if not listed or admitted to trading on any national securities on the National Market System of the National Association of Debt Securities Dealers, Inc. Automated Quotations System ("NASDAQ") or, if the Common Shares are not quoted on such National Market System, the average of the closing bid and asked prices on such day in an aggregate amount thatthe over-the-counter market as reported by NASDAQ or, together if bid and asked prices for the Common Shares on such day shall not have been reported through NASDAQ, the average of the bid and asked prices for such day as furnished by any New York Shares Exchange member firm regularly making a market in the Common Shares selected for such purpose by the Board of Directors or a committee thereof or, if no such quotations are available, the fair market value of the Common Shares as determined by a New York Shares Exchange Member firm regularly making a market in the Common Shares selected for such purpose by the Board of Directors or a committee thereof. As used herein, the term "Trading Day" with respect to the sum of Common Shares means (x) if the aggregate amount of any Common Shares are listed or admitted for trading on the New York Shares Exchange or another national securities exchange, a day on which the New York Stock Exchange or such other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed national securities exchange is open for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) business or (e) of this Section or this subsection (d) has been made plus (y) if the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within Common Shares are quoted on the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% National Market System of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock NASDAQ, a day on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case trades may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.such
Appears in 4 contracts
Sources: Indenture (Bre Properties Inc /Md/), Indenture (Bre Properties Inc /Md/), Indenture (Bre Properties Inc /Md/)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment adjusted from time to time by the Company as follows:
(a) In case the Company shall (i) pay declare a dividend dividend, or make a distribution, in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)its Common Stock, on its Common Stock, (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (subdivide or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide reclassify its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock or shares, (iviii) combine its outstanding Common Stock into a small number of shares, (iv) make a distribution on its Common Stock in shares of Class A common its capital stock into a smaller number other than Common Stock or (v) issue by reclassification of its Common Stock shares of Class A common its capital stock, the conversion privilege and the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of this any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common Common Stock or other capital stock of the Company which he such Holder would have owned immediately following or have been entitled to receive after the happening of any of the events described above had such action had the Note been converted immediately prior theretoto the happening of such event. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification. Such adjustment shall be made successively whenever any event listed above shall occur. In the event such dividend, issue or distribution is not so made, the conversion privilege and the Conversion Price then in effect shall be readjusted to the conversion privilege and the Conversion Price which would then be in effect if such dividend, issue or distribution had not been declared or made shall remain in effect.
(b) In case Company shall issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a The current market price per share of Common Stock at any date shall be deemed to be the average of the last reported sale prices for the twenty (or having a conversion price per share20) less than the Current Market Price per share consecutive Trading Days (as determined pursuant defined below) next preceding the day five (5) days prior to subsection the day in question. The last reported sale price for each day shall be (fi) belowthe last reported sale price of Common Stock on the National Market of the National Association of Securities Dealers, Inc., Automated Quotation System, or any similar system of automated dissemination of quotations of securities prices then in common use, if so quoted, or (ii) if not quoted as described in clause (i), the means between the high bid and low asked quotations for Common Stock as reported by the National Quotation Bureau Incorporated if at least two securities dealers have inserted both bid and asked quotations for such class of stock on at least five (5) of the Class A common ten (10) preceding days or (iii) if the Common Stock is listed or admitted for trading on any national securities exchange, the last sale price, or the closing bid price if no sale occurred, of such class of stock on the record date for determining principal securities exchange on which class of stock is listed. If the holders Common Stock is quoted on a national securities or central market system, in lieu of a market or quotation system described above, the closing price shall be determined in the manner set forth in clause (ii) of the Class A common preceding sentence if bid and asked quotations are reported but actual transactions are not, and in the manner set forth in clause (iii) of the preceding sentence if actual transactions are reported. If none of the conditions set forth above is met, the closing price of Common Stock on any day or the average of such closing prices for any period shall be the fair market value of such class of stock entitled as determined by a member firm of the New York Stock Exchange, Inc. selected by the Company. As used herein the term "Trading Days" with respect to receive Common Stock means (i) if the Common Stock is ------------ quoted on the National Market of the National Association of Securities Dealers, Inc., Automated Quotation System or any similar system of automated dissemination of quotations of securities prices, days on which trades may be made on such rightssystem or (ii) if the Common Stock is listed or admitted for trading on any national securities exchange, options or warrants, days on which such national securities exchange is open for business.
(c) No adjustment in the Conversion Price shall be adjusted so required unless such adjustment would require an increase or decrease of at least one percent (1%) in such price; provided, however, that any adjustment which by reason of -------- ------- this subsection (c) is not required to be made shall be carried forward and taken into account in any subsequent adjustment. Anything in this Section 10.05 to the same contrary notwithstanding, the Company shall equal be entitled to make such reductions in the price determined Conversion Price, in addition to those required by multiplying this Section 10.05, as it in its discretion shall determine to be advisable in order that any stock dividends, subdivision of shares, distribution of rights to purchase stock or securities, or a distribution of securities convertible into or exchangeable for stock hereafter made by the company to its stockholders shall not be taxable.
(d) Whenever the Conversion Price is adjusted, as herein provided, the Company shall promptly file with the Trustee and any Agent other than the Trustee an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth in effect immediately prior to reasonable detail the facts requiring such record date by adjustment. Promptly after delivery of such certificate, the Company shall prepare a fraction notice of which the numerator shall be the number of shares of Class A common stock outstanding as such adjustment of the close Conversion Price setting forth the adjusted Conversion Price and the date on which such adjustment becomes effective and shall mail such notice of business on such record date plus the number of shares of Class A common stock which the aggregate offering price adjustment of the total number of shares of Class A common stock so offered (Conversion Price to the holders holder of outstanding Class A common stock) for subscription or purchase (or any Note at his last address appearing on the aggregate conversion price registration books of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of DirectorsRegistrar.
(ce) In any case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by which this Section 9.11), then in each such case the Conversion Price shall be adjusted so 10.05 provides that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such an adjustment shall become effective immediately after the a record date for an event, the determination Company may defer until the occurrence of such event (i) issuing to the holders holder of Class A common stock entitled to receive any Note converted after such distribution. Notwithstanding record date and before the foregoing, in case Company shall distribute rights, options or warrants to subscribe for occurrence of such event the additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock Common Stock issuable upon such conversion (by reason of the "Conversion Shares"), a number of Rights to be determined as follows: (i) if adjustment required by such event over and above the Common Stock issuable upon such conversion occurs on or prior before giving effect to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; adjustment and (ii) if paying to such conversion occurs after the Distribution Date, the same number holder any amount in cash in lieu of Rights any fraction pursuant to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the RightsSection 10.03.
(df) In case Company shall, by dividend or otherwise, at any time make If after an adjustment a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part Holder of a distribution requiring Note upon conversion of such Note receives shares of two or more classes of capital stock of the Company, the Company shall determine on a fair basis the allocation of the adjusted Conversion Price adjustment pursuant to subsection (c) between the classes of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Datecapital stock.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
Appears in 3 contracts
Sources: Indenture (Cellstar Corp), Indenture (Cellstar Corp), Indenture (Cellstar Corp)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case Company the Issuer shall (i1) pay a dividend or make a distribution on Class A Common Stock in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii2) subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock or (iv3) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares of Class A common stockshares, the Conversion Price in effect immediately prior to such action shall be adjusted as provided below so that the holder Holder of this Note any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock Common Stock which he would have owned been entitled to receive immediately following such action had the Note such Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately immedi ately, except as provided in subsection (e) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case Company the Issuer shall issue rights, warrants or options or warrants to all holders of Class A common stock Common Stock entitling them for a period expiring within 45 days after the record date therefor to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) Common Stock at a price per share (or having a conversion price per share) less than the Current Market Price current market price per share (as determined pursuant to subsection (fd) below) of the Class A common stock Common Stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrantsmentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by multiplying multiplying:
(1) the Conversion Price in effect immediately prior to the date of issuance of such record date rights, warrants or option by a fraction fraction, of which which
(2) the numerator shall be (A) the number of shares of Class A common stock Common Stock outstanding as on the date of the close issuance of business on such record date rights, warrants or options immediately prior to such issuance, plus (B) the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price current market price (as determined pursuant to subsection (f) belowby multiplying such total number of shares by the exercise price of such rights, warrants or options and dividing the product so obtained by such current market price), and of which which
(3) the denominator shall be (A) the number of shares of Class A common stock Common Stock outstanding on the date of issuance of such record date rights, warrants or options, immediately prior to such issuance, plus (B) the number of additional shares of Class A common stock Common Stock which are so offered for subscription or purchase (or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall become effective immediately after such record date. For the purposes of this immedi ately, except as provided in subsection (b)e) below, after the number record date for the determination of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders Holders entitled to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for receive such rights, warrants, warrants or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case Company the Issuer shall distribute to all holders of Class A common stock shares Common Stock evidences of capital stock of Company indebtedness, equity securities (including equity interests in the Issuer's Subsidiaries) other than Class A common stockCommon Stock or other assets (other than cash dividends), evidences or shall distribute to all holders of indebtedness, cash, Class A Common Stock rights, warrants or options or warrants entitling the holders thereof to subscribe for or purchase to securities (other than rights, options or warrants described those referred to in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) above and dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidationliquidation, merger dissolution or transfer winding up of assets covered by Section 9.11the Issuer), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in subsection (fd) below) of the Class A common stock Common Stock on the record date mentioned below less the then fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value value, and described in a board resolutionBoard Resolution filed with the Trustee) of the portion of the assets, evidences of indebtedness, shares indebtedness and equity securities so distributed or of capital stock, cash, such subscription rights, options, warrants or other assets so distributed options applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)Common Stock, and of which the denominator shall be such Current Market Price current market price per share of the Class A common stockCommon Stock. For the purposes of this subsection (c), in the event of a distribution of shares of capital stock or other securities of any Subsidiary as a dividend on shares of Class A Common Stock, the then fair market value of the shares of other securities so distributed shall be deemed to be the market value (determined as provided above) of such shares or other securities. Such adjustment shall become effective immediately immediately, except as provided in subsection (e) below, after the record date for the determination of the holders of Class A common stock stockholders entitled to receive such distribution. Notwithstanding .
(d) For the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares purpose of Company's capital stock (other than rights, options or warrants referred to in subsection any computation under subsections (b) and (c) above) ("Rights") to all holders , the current market price per share of Class A common stock, Company may, in lieu of making Common Stock on any adjustment pursuant date shall be deemed to be the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder average of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption Last Sale Prices of the Rights shall be entitled to receive upon such conversion, in addition to the shares a share of Class A common stock issuable upon such conversion (Common Stock for the five consecutive Trading Days commencing not more than 20 Trading Days before, and ending not later than, the earlier of the date in question and the date before the "Conversion Sharesex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term "'ex' date", when used with respect to any issuance or distribution, means the first date on which the Class A Common Stock trades regular way on the principal national securities exchange on which the Class A Common Stock is listed or admitted to trading (or if not so listed or admitted on NASDAQ or a similar organization if NASDAQ is no longer reporting trading information) without the right to receive such issuance or distribution.
(e) In any case in which this Section shall require that an adjustment be made immediately follow ing a record date, the Issuer may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), a number of Rights in which case the Issuer shall, with respect to be determined as follows: any Security converted after such record date and before such adjustment shall have become effective (i) if such conversion occurs on defer making any cash payment pursuant to Section 12.3 or prior issuing to the date for Holder of such Security the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common Common Stock and other capital stock equal to of the number of Conversion Shares is entitled at the time of Issuer issuable upon such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder excess of the number of shares of Class A common Common Stock and other capital stock into which the principal amount of the Note so converted was convertible immediately Issuer issuable thereupon only on the basis of the Conversion Price prior to adjustment, and (ii) not later than five Business Days after such adjustment shall have become effective, pay to such Holder the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in appropriate cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment payment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled Section 12.3 and issue to such distribution (Holder the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of additional shares of Class A common Common Stock and other capital stock outstanding of the Issuer issuable on the Distribution Record Date such conversion.
(excluding shares held f) No adjustment in the treasury of Company), the Conversion Price shall be reduced so required if Securityholders are to participate in the transaction on a basis and with notice that the same shall equal the price determined by multiplying such Conversion Price Board of Directors determines to be fair and appropri ate in effect immediately prior to the effectiveness light of the Conversion Price reduction contemplated by this subsection (d) by a fraction of basis and notice on which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share holders of Class A common stock (which shall be determined by dividing Common Stock participate in the sum of the aggregate amount of cash and the aggregate Excess Payments so distributedtransaction. In addition, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) shall be required unless such adjustment would require an increase or (d) decrease of this Section or at least 1% in the Conversion Price; provided that any adjustments which by reason of this subsection (ef) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(g) Whenever the Conversion Price is adjusted as herein provided, the Issuer shall promptly (i) file with the Trustee and each conversion agent an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth in reasonable detail the facts requiring such adjustment and the calculations on which the adjustment is based, which certificate shall be conclusive evidence of the correctness of such adjustment and which shall be made available by the Trustee to the Holders of Securities for inspection thereof, (ii) mail or cause to be mailed a notice of such adjustment, setting forth the adjusted Conversion Price and the date on which such adjustment became or becomes effective, to each Holder of Securities at his address as the same appears on the registry books of the Issuer. To the extent permitted by law, the Issuer from time to time may reduce the Conversion Price by any amount for any period of at least 20 days, if the Board of Directors has been made plus (y) a determination that such reduction would be in the aggregate amount best interests of all Excess Payments in respect the Issuer, which determination shall be conclusive. In such case, the Issuer shall give at least 15 days' notice of any other tender offers or other negotiated transactions by Company or any of the reduction. In addition, at its Subsidiaries for Class A common stock concluded within option, the 12 months preceding the Purchase Date and in respect of which no adjustment Issuer may make such reduction in the Conversion Price pursuant as the Board of Directors deems advisable to subsection (c) avoid or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares diminish any income tax to holders of Class A common stock outstanding on the Purchase Date (including Common Stock resulting from any tendered shares but excluding any shares held in the treasury dividend or distribution of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect rights to outstanding shares of Class A common stock within acquire stock) or from any event treated as such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Datefor income tax purposes.
Appears in 3 contracts
Sources: Indenture (American Tower Corp /Ma/), Indenture (American Tower Corp /Ma/), Indenture (American Tower Corp /Ma/)
Adjustment of Conversion Price. The Subject to the requirements of a Recognized Stock Exchange, the Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:set forth below.
(a) In case Company shall If and whenever at any time prior to the Time of Expiry the Corporation shall: (i) pay a dividend in shares of Class A common stock to holders of Class A common stock (subdivide, redivide or any event treated as such for U.S. Federal income tax purposes), (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its change the outstanding shares of Class A common stock Common Shares into a greater number of shares of Class A common stock shares, (ii) reduce, combine or (iv) combine its consolidate the outstanding shares of Class A common stock Common Shares into a smaller number of shares shares, or (iii) issue Common Shares or securities convertible into Common Shares to the holders of Class A common stockall or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than cash dividends or distributions for which an adjustment would be made under Section 4.5(b)) (a "Common Share Reorganization"), the Conversion Price in effect on the date of such subdivision, redivision, reduction, combination or consolidation or on the record date for such issue of Common Shares or securities convertible into Common Shares by way of a dividend or distribution, as the case may be, shall be adjusted effective immediately after the record date at which the holders of Common Shares are determined for the purpose of the Common Share Reorganization by multiplying the Conversion Price in effect immediately prior to such action record date by a fraction: (1) the denominator of which shall be adjusted so that the holder of this Note thereafter surrendered for conversion shall be entitled to receive the number of shares Common Shares outstanding immediately after giving effect to such Common Share Reorganization (including, in the case where securities exchangeable for or convertible into Common Shares are distributed, the number of Class A common stock which he Common Shares that would have owned immediately following been outstanding had such action had the Note securities been exchanged for or converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall into Common Shares on such record date, assuming in any case where such securities are not then convertible or exchangeable but subsequently become effective immediately after so, that they were convertible or exchangeable on the record date on the basis upon which they first become convertible or exchangeable); and (2) the numerator of which shall be the number of Common Shares outstanding on such record date before giving effect to such Common Share Reorganization. Such adjustment shall be made successively whenever any event referred to in the case this Section 4.5 shall occur. Any such issue of Common Shares or securities convertible into Common Shares by way of a dividend or distribution shall be deemed to have been made on the record date for the dividend or distribution for the purpose of calculating the number of outstanding Common Shares under subsections (c) and shall become effective immediately after the effective date in the case (d) of a subdivision or combinationthis Section 4.5.
(b) In case Company If and whenever at any time prior to the Time of Expiry the Corporation shall issue rightsfix a record date for the payment of a cash dividend or distribution to the holders of all or substantially all of the outstanding Common Shares in respect of any applicable period, options the Conversion Price shall be adjusted immediately after such record date so that it shall be equal to the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the denominator shall be the Current Market Price per Common Share on such record date and of which the numerator shall be the Current Market Price per Common Share on such record date minus the amount in cash per Common Share distributed to holders of Common Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such cash dividend or distribution is not paid, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed.
(c) If and whenever at any time prior to the Time of Expiry the Corporation shall fix a record date for the issuance of options, rights or warrants to all or substantially all the holders of Class A common stock its outstanding Common Shares entitling them them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase shares of Class A common stock Common Shares (or securities convertible into Class A common stockCommon Shares) at a price per share (or having a conversion or exchange price per share) less than 95% of the Current Market Price of a Common Share on such record date, the Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the Conversion Price in effect on such record date by a fraction, of which the numerator shall be the total number of Common Shares outstanding on such record date plus a number of Common Shares equal to the number arrived at by dividing the aggregate price of the total number of additional Common Shares offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible securities so offered) by such Current Market Price per Common Share, and of which the denominator shall be the total number of Common Shares outstanding on such record date plus the total number of additional Common Shares offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustment shall be made successively whenever such a record date is fixed. To the extent that any such options, rights or warrants are not so issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the Conversion Price shall be re-adjusted to the Conversion Price which would then be in effect if such record date had not been fixed or to the Conversion Price which would then be in effect based upon the number of Common Shares (or securities convertible into Common Shares) actually issued upon the exercise of such options, rights or warrants were included in such fraction, as the case may be.
(d) If and whenever at any time prior to the Time of Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 4.5(a) or a consolidation, amalgamation, arrangement, binding share (as determined exchange, merger of the Corporation with or into any other Person or other entity or acquisition of the Corporation or other combination pursuant to subsection (f) below) which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the Class A common stock property and assets of the Corporation as an entirety or substantially as an entirety to any other Person (other than a direct or indirect wholly-owned subsidiary of the Corporation) or other entity or a liquidation, dissolution or winding-up of the Corporation, any Holder of a Debenture who has not exercised its right of conversion prior to the date of such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of such right thereafter, shall be entitled to receive and shall accept, in lieu of the number of Common Shares then sought to be acquired by it, such amount of cash or the number of shares or other securities or property of the Corporation or of the Person or other entity resulting from such merger, amalgamation, arrangement, acquisition, combination or consolidation, or to which such sale or conveyance may be made or which holders of Common Shares receive pursuant to such liquidation, dissolution or winding-up, as the case may be, that such Holder of a Debenture would have been entitled to receive on such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, if, on the record date or the date of this Indenture, as the case may be, the Holder had been the registered Holder of the number of Common Shares sought to be acquired by it and to which it was entitled to acquire upon the exercise of the conversion right. If determined appropriate by the Board of Directors, to give effect to or to evidence the provisions of this Section 4.5(d), the Corporation, its successor, or such purchasing Person or other entity, as the case may be, shall, prior to or contemporaneously with any such reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, enter into an indenture which shall provide, to the extent possible, for determining the application of the provisions set forth in this Indenture with respect to the rights and interests thereafter of the Holder of Debentures to the end that the provisions set forth in this Indenture shall thereafter correspondingly be made applicable, as nearly as may reasonably be, with respect to any cash, shares or other securities or property to which a Holder of Debentures is entitled on the exercise of its acquisition rights thereafter. Any indenture entered into between the Corporation and the Trustee pursuant to the provisions of this Section 4.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Section 13.4. Any indenture entered into between the Corporation, any successor to the Corporation or such purchasing Person or other entity and the Trustee shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided in this Section 4.5(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances.
(e) If the Corporation shall make a distribution to all holders of shares in the capital of the Corporation, other than Common Shares, or evidences of indebtedness or other assets of the Corporation, including securities (but excluding (x) any issuance of rights or warrants for which an adjustment was made pursuant to Section 4.5(c), and (y) any dividend or distribution paid exclusively in cash for which an adjustment was made pursuant to Section 4.5(b) (the "Distributed Securities"), then in each such case (unless the Corporation distributes such Distributed Securities to the holders of Debentures on such dividend or distribution date (as if each Holder had converted such Debenture into Common Shares immediately preceding the Class A common stock entitled record date with respect to receive such rights, options or warrants, distribution)) the Conversion Price in effect immediately preceding the ex-distribution date fixed for the dividend or distribution shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to preceding such record ex-distribution date by a fraction of which the denominator shall be the VWAP for the Common Shares for the five consecutive trading days immediately prior to the ex-distribution date and of which the numerator shall be the number of shares of Class A common stock outstanding as of VWAP for the close of business on such record date plus Common Shares for the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator first five consecutive trading days that occur immediately following ex-distribution date. Such adjustment shall be the number of shares of Class A common stock outstanding on made successively whenever any such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments distribution is made and shall become effective five Business Days immediately after such record following the ex-distribution date. For In the purposes of this subsection (b)event that such dividend or distribution is not so paid or made, the number of shares of Class A common stock at any time outstanding Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not include shares held in been declared. Notwithstanding the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such considerationforegoing, if any, other than cash, to be determined the securities distributed by the Board of Directors.
(c) In case Company shall distribute Corporation to all holders of Class A common stock shares its Common Shares consist of capital stock of, or similar equity interests in, a Subsidiary or other business of Company the Corporation (other than Class A common stockthe "Spinoff Securities"), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the price rate determined by multiplying the Conversion Price in effect immediately prior on the record date fixed for the determination of shareholders entitled to the date of receive such distribution by a fraction fraction, the denominator of which the numerator shall be the sum of: (A) the VWAP for the Common Shares for the 20 consecutive trading day period (the "Spinoff Valuation Period") commencing on and including the fifth trading day after the date on which ex-dividend trading commences for such distribution on a Recognized Stock Exchange or market on which the Common Shares are then listed or quoted and (B) the product of: (i) the weighted average trading price (calculated in substantially the same way as the Current Market Price (determined as provided in subsection (fis calculated for the Common Shares) below) over the Spinoff Valuation Period of the Class A common stock Spinoff Securities or, if no such prices are available, the Fair Market Value of the Spinoff Securities (which determination shall be conclusive and shall be evidenced by an Officer's Certificate delivered to the Trustee) multiplied by (ii) the number of Spinoff Securities distributed in respect of one Common Share and the numerator of which shall be the VWAP for the Common Shares for the Spinoff Valuation Period, such adjustment to become effective immediately preceding the opening of business on the 25th trading day after the date on which ex-dividend trading commences; provided, however, that the Corporation may in lieu of the foregoing adjustment elect to make adequate provision so that each Holder of Debentures shall have the right to receive upon conversion thereof the amount of such Spinoff Securities that such Holder of Debentures would have received if such Debentures had been converted on the record date mentioned below less the fair market value on with respect to such record date distribution.
(as determined by the Board of Directors, whose determination f) In any case in which this Section 4.5 shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such require that an adjustment shall become effective immediately after the a record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants an event referred to in subsection (b) above) ("Rights") to all holders herein, the Corporation may defer, until the occurrence of Class A common stocksuch event, Company may, in lieu of making any adjustment pursuant issuing to the foregoing provisions Holder of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) Debenture converted after the such record date for and before the occurrence of such distribution and prior to event the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock additional Common Shares issuable upon such conversion (by reason of the "adjustment required by such event before giving effect to such adjustment; provided, however, that the Corporation shall deliver to such Holder an appropriate instrument evidencing such Holder's right to receive such additional Common Shares upon the occurrence of the event requiring such adjustment and the right to receive any distributions made on such additional Common Shares declared in favour of holders of record of Common Shares on and after the Date of Conversion Shares"or such later date as such Holder would, but for the provisions of this Section 4.5(f), a number have become the Holder of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time record of such conversion in accordance with the terms and provisions of and applicable additional Common Shares pursuant to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the RightsSection 4.4(b).
(dg) In case Company shallThe adjustments provided for in this Section 4.5 are cumulative and shall apply to successive subdivisions, by dividend redivisions, reductions, combinations, consolidations, distributions, issues or otherwise, at other events resulting in any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) under the provisions of this Section) in an aggregate amount , provided that, together with the sum of (x) the aggregate amount of notwithstanding any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) provision of this Section) , no adjustment of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which required unless such adjustment is being made) applicable to one share would require an increase or decrease of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment at least 1% in the Conversion Price pursuant to subsection (c) or (d) then in effect; provided however, that any adjustments which by reason of this Section or this subsection 4.5(g) are not required to be made shall be carried forward and taken into account in any subsequent adjustment.
(eh) has been made plus (y) For the aggregate amount purpose of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by calculating the number of shares of Class A common stock outstanding on Common Shares outstanding, Common Shares owned by or for the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness benefit of the Conversion Price reduction contemplated by this subsection Corporation shall not be counted.
(ei) by a fraction In the event of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable any question arising with respect to outstanding shares the adjustments provided in this Section 4.5, such question shall be conclusively determined by a firm of Class A common stock within nationally recognized chartered accountants appointed by the Corporation and acceptable to the Trustee (who may be the auditors of the Corporation); such 12 months (including, without limitationaccountants shall have access to all necessary records of the Corporation and such determination shall be binding upon the Corporation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) Trustee, and the denominator Debentureholders.
(j) In case the Corporation shall be such Current Market Price per share (determined as provided take any action affecting the Common Shares other than action described in subsection (f) of this Section) Section 4.5, which in the opinion of the Class A common stock on Board of Directors, adjusted in such manner and at such time, by action of the Purchase DateBoard of Directors, such reduction to become effective immediately prior subject to the opening requirements of business a Recognized Stock Exchange on which the day following Common Shares are listed, as the Purchase Date.Board of Directors, in their sole discretion acting reasonably and in good faith may determine to be equitable in the circumstances. Failure of the directors
Appears in 2 contracts
Sources: Indenture (C21 Investments Inc.), Indenture (C21 Investments Inc.)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (i) pay a dividend in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock into a greater number of shares of Class A common stock or (iv) combine its outstanding shares of Class A common stock into a smaller number of shares of Class A common stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of this any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which he would have owned immediately following such action had the Note such Notes been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of the Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by the Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case the Company shall distribute to all holders of Class A common stock shares of capital stock of the Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than the Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall distribute rights, options or warrants to subscribe for additional shares of the Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, the Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the each holder of the a Note who converts the such Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case the Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by the Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of the Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by the Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
Appears in 2 contracts
Sources: Modification Agreement (Easylink Services Corp), Modification Agreement (Easylink Services Corp)
Adjustment of Conversion Price. The conversion price or rate (herein called the "Conversion Price Price") for a series of Securities shall be as set forth in a Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Sections 201 and 301 by or pursuant to which the form and terms of the Securities of such series were established, and, except as otherwise provided therein, shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (i1) make or pay a dividend (or other distribution) in shares of Class A common stock to holders Common Stock on any class of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Capital Stock of the Company, (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii2) subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock or (iv3) combine or reclassify its outstanding shares of Class A common stock into a smaller number of shares of Class A common stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of this Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which he would have owned immediately following such action had the Note been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.outstanding
(b) In case the Company shall issue rights, options or warrants to all holders of Class A common stock Common Stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) Common Stock at a price per share (or having a conversion price per share) less than the Current Market Price then current market price per share (as determined pursuant to subsection (f) below) of the Class A common stock Common Stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrantsmentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by multiplying multiplying:
(1) the Conversion Price in effect immediately prior to the date of issuance of such record date rights, options or warrants by a fraction fraction, of which which
(2) the numerator shall be (A) the number of shares of Class A common stock Common Stock outstanding as on the date of the close issuance of business on such record date rights, options or warrants, immediately prior to such issuance, plus (B) the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price current market price (as determined pursuant to subsection (f) belowby multiplying such total number of shares by the exercise price of such rights, options or warrants and dividing the product so obtained by such current market price), and of which which
(3) the denominator shall be (A) the number of shares of Class A common stock Common Stock outstanding on the date of issuance of such record date rights, options or warrants, immediately prior to such issuance, plus (B) the number of additional shares of Class A common stock Common Stock which are so offered for subscription or purchase (or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall become effective immediately after such record date. For the purposes of this immediately, except as provided in subsection (b)h) below, after the number record date for the determination of shares of Class A common stock at holders entitled to receive such rights, options or warrants; provided, however, that if any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined issued by the Board Company as described in this subsection (b) are only exercisable upon the occurrence of Directorscertain triggering events relating to control and provided for in shareholder rights plans, then the Conversion Price will not be adjusted as provided in this subsection (b) until such triggering events occur.
(c) In case the Company or any Subsidiary of the Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), Common Stock evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (shares of Capital Stock other than rightsCommon Stock, options or warrants described in subsection (b) above) cash or other assets (including securities of Persons securities, but other than Company but excluding (ix) regular dividends or distributions paid exclusively in cash except as described or (y) any dividend or distribution for which an adjustment is required to be made in subsection (d) below, (ii) dividends and distributions described in accordance with subsection (a) above and or (iiib) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price then current market price per share (determined as provided in subsection (f) below) of the
(d) In case the Class A common stock Company or any Subsidiary of the Company shall make any distribution consisting exclusively of cash (excluding any cash portion of distributions for which an adjustment is required to be made in accordance with (c) above, or cash distributed upon a merger or consolidation to which Section 1505 applies) to all holders of Common Stock in an aggregate amount that, combined together with (i) all other such all-cash distributions made within the then preceding 12 months in respect of which no adjustment has been made and (ii) any cash and the fair market value of other consideration paid or payable in respect of any tender offer by the Company or any of its Subsidiaries for Common Stock concluded within the preceding 12 months in respect of which no adjustment has been made, exceeds 15% of the Company's market capitalization (defined as being the produce of the then current market price of the Common Stock (determined as provided in subsection (f) below) times the number of shares of Common Stock then outstanding) on the record date mentioned below less of such distribution, then in each such case the fair Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the then current market value price per share of the Common Stock on such record date (as determined by less the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) amount of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets cash so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)Common Stock, and of which the denominator shall be such Current Market Price current market price per share of the Class A common stockCommon Stock. Such adjustment shall become effective immediately immediately, except as provided in subsection (h) below, after the record date for the determination of the holders of Class A common stock stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the cash so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such amount of cash by less than $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (d), and, to the extent applicable, the provisions of subsection (k) shall apply to such distribution.
(e) In case there shall be completed a tender or exchange offer made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock (any such tender or exchange offer being referred to as an "Offer") that involves an aggregate consideration having a fair market value as of the expiration of such Offer (the "Expiration Time") that, together with (i) any cash and the fair market value of any other consideration payable in respect of any other Offer, as of the expiration of such other Offer, expiring within the 12 months preceding the expiration of such Offer and in respect for which no Conversion Price adjustment pursuant to this subsection (e) has been made and (ii) the aggregate amount of any all-cash distributions referred to in subsection (d) of this Section 1504 to all holders of Common Stock within the 12 months preceding the expiration
(f) For the purpose of any computation under subsections (b), (c), (d) and (e) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the Last Sale Prices of a share of Common Stock for the five consecutive Trading Days selected by the Company commencing not more than 20 Trading Days before, and ending not later than, the earlier of the date in question and the date before the "ex date," with respect to the issuance, distribution or Offer requiring such computation. For purposes of this paragraph, the term "ex date," when used with respect to any issuance, distribution or payments with respect to an Offer, means the first date on which the Common Stock trades regular way on the New York Stock Exchange (or if not listed or admitted to trading thereon, then on the principal national securities exchange on which the Common Stock is listed or admitted to trading) without the right to receive such issuance, distribution or Offer.
(g) In addition the foregoing adjustments in subsections (a), (b), (c), (d) and (e) above, the Company will be permitted to make such reductions in the Conversion Price as it considers to be advisable in order that any event treated for Federal income tax purposes as a dividend of stock or stock rights will not be taxable to the holders of the shares of Common Stock. In the event the Company elects to make such a reduction in the Conversion Price, the Company will comply with the requirements of Rule 14e-1 of the Securities Exchange Act of 1934, as amended and any other Federal and state laws and regulations thereunder if and to the extent that such laws and regulations are applicable in connection with the reduction of the Conversion Price of the Notes; provided, however, that any provisions of this Indenture which conflict with such laws shall be deemed to be superseded by the provisions of such laws.
(h) In any case in which this Section 1504 shall require that an adjustment (including by reason of the last sentence of subsection (a) or (c) above) be made immediately following a record date, the Company may elect to defer the effectiveness of such adjustment (but in no event until a
(i) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% of the Conversion Price; provided, however, that any adjustments which by reason of this subsection (i) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article Fifteen shall be made to the nearest cent or to the nearest one- hundredth of a share, as the case may be.
(j) Whenever the Conversion Price is adjusted as herein provided, the Company shall distribute rightspromptly (i) file with the Trustee and each Conversion Agent an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, options which certificate shall be conclusive evidence of the correctness of such adjustment, and (ii) give or cause to be given a notice of such adjustment to each Holder of Securities in the manner provided in Section 106.
(k) In the event that the Company distributes rights (including rights to distributions referred to by paragraphs (c) and (d) of this Section 1504 to the extent this paragraph (k) applies thereto) or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants those referred to in subsection (b) above) ("Rights") pro rata to all holders of Class A common stockCommon Stock, so long as any such rights or warrants have not expired or been redeemed by the Company, the Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 shall make proper provision so that the holder Holder of the Note who converts the Note (or any portion thereof) after the record date Security surrendered for such distribution and prior to the expiration or redemption of the Rights shall conversion will be entitled to receive upon such conversion, in addition to the shares of Class A common stock Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights rights or warrants to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights rights or warrants of separate certificates evidencing such Rights rights or warrants (the "Distribution Date"), the same number of Rights rights or warrants to which a holder of a number of shares of Class A common stock Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; rights or warrants, and (ii) if such conversion occurs after the such Distribution Date, the same number of Rights rights or warrants to which a holder of the number of shares of Class A common stock Common Stock into which the principal amount of the Note such Security so converted was convertible immediately prior to the such Distribution Date would have been entitled on the such Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
rights or warrants. If any of the following shall occur, namely: (da) In case Company shallany reclassification or change of outstanding shares of Common Stock issuable upon conversion of any Securities (other than a change in par value, by dividend or otherwisefrom par value to no par value, at any time make or from no par value to par value, or as a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part result of a distribution requiring subdivision or combination), (b) any consolidation or merger of the Company with or into any other Person, or the merger of any other Person with or into the Company (other than a Conversion Price adjustment pursuant to subsection merger which does not result in any reclassification, change, conversion, exchange or cancellation of outstanding shares of Common Stock) or (c) any conveyance, transfer or lease of this Section) in the properties and assets of the Company substantially as an aggregate amount thatentirety, together with then the sum Company, or such successor or purchasing entity, as the case may be, shall, as a condition precedent to such reclassification, change, consolidation, merger, conveyance, transfer or lease, execute and deliver to the Trustee a supplemental indenture providing that the Holder of (x) each Security then outstanding shall have the aggregate right to convert such Security only into the kind and amount of any shares of stock and other distributions made exclusively in cash to all holders securities and property (including cash) receivable upon such reclassification, change, consolidation, merger, conveyance, transfer or lease by a holder of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury Common Stock issuable upon conversion of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect Security immediately prior to the effectiveness such reclassification, change, consolidation, merger, conveyance, transfer or lease assuming such holder of Common Stock of the Conversion Price reduction contemplated by this subsection Company failed to exercise his rights of an election, if any, as to the kind or amount of securities, cash and other property receivable upon such reclassification, change, consolidation, merger, conveyance, transfer or lease (d) by a fraction provided that if the kind or amount of which securities, cash and other property receivable upon such reclassification, change, consolidation, merger, conveyance, transfer or lease is not the numerator shall be the Current Market Price per same for each share (determined as provided in subsection (f) of this Section) Common Stock of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributedCompany held immediately prior to such reclassification, paid change, consolidation, merger, conveyance, transfer or payable within such 12-month period (including, without limitation, the distribution lease in respect of which such adjustment is being made) applicable rights of election shall not have been exercised ("non-electing share"), then for the purpose of this Section 1505 the kind and amount of securities, cash and other property receivable upon such reclassification, change, consolidation, merger, conveyance, transfer or lease by each non-electing share shall be deemed to one be the kind and amount so receivable per share by a plurality of Class A common stock (the non-electing shares). Such supplemental indenture shall provide for adjustments which shall be determined by dividing as nearly equivalent as may be practicable to the sum adjustments provided for in this Article Fifteen. If, in the case of the aggregate amount of cash and the aggregate Excess Payments so distributedany such consolidation, paid merger, conveyance, transfer or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitationlease, the distribution stock or other securities and property (including cash) receivable thereupon or in respect of which such adjustment is being made) connection therewith by the number a holder of shares of Class A common Common Stock includes shares of stock outstanding on the Distribution Record Date) or other securities and the denominator shall be such Current Market Price per share property (determined as provided in subsection (fincluding cash) of this Section) of a Person other than the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer successor or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offerpurchasing Person, as the case may be, in such consolidation, merger, conveyance, transfer or lease, then such supplemental indenture shall also be (executed by such other Person and shall contain such additional provisions to protect the "Purchase Date"), and interests of the Holders of the Securities as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) Board of Directors shall reasonably consider necessary by reason of the foregoing. The provisions of this Section 1505 shall similarly apply to successive consolidations, mergers, conveyances, transfer or this subsection (e) has been made plus (y) leases. Notice of the aggregate amount execution of all Excess Payments each such supplemental indenture shall be given to each Holder of Securities in respect the manner provided in Section 106. Neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of any other tender offers or other negotiated transactions by Company or provisions contained in any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant such supplemental indenture relating either to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.the
Appears in 2 contracts
Sources: Subordinated Indenture (Newfield Exploration Co /De/), Subordinated Indenture (Newfield Financial Trust Ii)
Adjustment of Conversion Price. (1) The Conversion Price shall in effect at any date will be subject to adjustment from time to time as followsin the events and in the manner provided in this Article 5.
(2) If and whenever at any time after the date hereof and prior to the Maturity Date, the Corporation:
(a) In case Company shall issues Common Shares or securities convertible into or exchangeable for Common Shares to the holders of all or substantially all of the outstanding Common Shares as a stock dividend or otherwise;
(ib) pay makes a dividend distribution on its outstanding Common Shares to the holders of all or substantially all of the outstanding Common Shares payable in shares Common Shares or securities convertible into or exchangeable for Common Shares (other than an issue of Class A common stock Common Shares to holders of Class A common stock Common Shares pursuant to a right granted to such holders to receive such Common Shares in lieu of Dividends Paid in the Ordinary Course);
(or any event treated as such for U.S. Federal income tax purposes), (iic) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide subdivides its outstanding shares of Class A common stock Common Shares into a greater number of shares of Class A common stock Common Shares; or
(d) reduces, combines or (iv) combine consolidates its outstanding shares of Class A common stock Common Shares into a smaller number of shares Common Shares, (any of Class A common stocksuch events in subsections (a), (b), (c) and (d) being called a “Common Share Reorganization”), then the Conversion Price then in effect immediately prior to such action shall will be adjusted so that the holder of this Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which he would have owned immediately following such action had the Note been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after on the effective date in the case of a subdivision or combination.
(b) In case Company shall issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the happening of a Common Share Reorganization, as the case may be, at which the holders of Common Shares are determined for the Class A common stock entitled to receive such rightspurpose of the Common Share Reorganization, options or warrants, the Conversion Price shall be adjusted so that the same shall it will equal the price determined by multiplying the Conversion Price in effect immediately prior to such effective date or record date by a fraction fraction, the numerator of which the numerator shall will be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock Common Shares outstanding on such effective date or record date plus before giving effect to such Common Share Reorganization and the denominator of which will be the total number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective Common Shares outstanding immediately after giving effect to such record date. For Common Share Reorganization (including, in the purposes of this subsection (b)case where securities exchangeable for or convertible into Common Shares are distributed, the number of shares of Class A common stock Common Shares that would have been outstanding had all such securities been exchanged for or converted into Common Shares on such effective date or record date).
(3) If and whenever at any time outstanding shall not include shares held in after the treasury date hereof and prior to the Maturity Date, the Corporation fixes a record date for the issue of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle to the holders of all or substantially all of the outstanding Common Shares under which such holders are entitled, during a period expiring not more than 45 days after the record date for such issue (the “Rights Period”), to subscribe for or purchase shares Common Shares or securities exchangeable for or convertible into Common Shares at a price per share to the holder (or at an exchange price or conversion price per share during the Rights Period to the holder in the case of Class A common stock at securities exchangeable for or convertible into Common Shares) which is less than 95% of the Current Market Price, and in determining Price for the aggregate offering price Common Shares on such record date (any of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11events being called a “Rights Offering”), then in each such case the Conversion Price shall will be adjusted effective immediately after the end of the Rights Period so that the same shall it will equal the price determined by multiplying the Conversion Price in effect immediately prior to the date end of such distribution the Rights Period by a fraction fraction:
(a) the numerator of which the numerator shall will be the Current Market Price aggregate of:
(determined i) the total number of Common Shares outstanding as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less for the fair market value on such record date commencement of the Rights Offering, and
(as ii) a number determined by dividing (I) either (x) the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis product of the number of shares Common Shares issued or subscribed for during the Rights Period upon the exercise of the Class A common stock outstanding on rights, warrants or options under the record date)Rights Offering and the price at which such Common Shares are offered for such issue or subscription, or, as the case may be, (y) the product of the exchange price or conversion price of such securities exchangeable for or convertible into Common Shares and the number of Common Shares for or into which the denominator shall be such securities so offered pursuant to the Rights Offering could have been exchanged or converted during the Rights Period, by (II) the Current Market Price of the Class A common stockCommon Shares as of the record date for the commencement of the Rights Offering, and
(b) the denominator of which will be the number of Common Shares outstanding, or the number of Common Shares which would be outstanding if all the exchangeable or convertible securities were exchanged for or converted into Common Shares during the Rights Period, after giving effect to the Rights Offering and including the number of Common Shares actually issued or subscribed for during the Rights Period upon exercise of the rights, warrants or options under the Rights Offering. Such adjustment shall become effective Any Debentureholder who has exercised the right to convert to Common Shares in accordance with Article 4 during the period beginning immediately after the record date for a Rights Offering and ending on the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption last day of the Rights shall be entitled to receive upon such conversionPeriod for the Rights Offering will, in addition to the shares of Class A common stock issuable Common Shares to which that holder would otherwise be entitled upon such conversion (the "Conversion Shares")conversion, a be entitled to that number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock additional Common Shares equal to the number of Conversion Shares is entitled at result obtained when the time of such conversion in accordance with difference, if any, between the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness end of such Rights Offering and the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within adjusted for such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price Rights Offering pursuant to subsection (c) or (d) of this Section or this subsection (e5.01(3) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date is multiplied by the number of shares Common Shares received upon the conversion of Class A common stock outstanding the Debentures held by such Holder during such period, and the resulting product is divided by the Conversion Price as adjusted for such Rights Offering pursuant to this Section 5.01(3); provided that the provisions of Section 4.03 will be applicable to any fractional interest in a Common Share to which such Holder might otherwise be entitled under the foregoing provisions of this Section 5.01(3). Such additional Common Shares will be deemed to have been issued to the Debentureholder immediately following the end of the Rights Period and a certificate for such additional Common Shares will be delivered to such Holder within 15 Business Days following the end of the Rights Period. To the extent that any such rights, options or warrants are not so exercised on or before the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company)expiry thereof, the Conversion Price shall will be reduced readjusted to the Conversion Price which would then be in effect based on the number of Common Shares (or the securities convertible into or exchangeable for Common Shares) actually delivered on the exercise of such rights, options or warrants.
(4) If and whenever at any time after the date hereof and prior to the Maturity Date, the Corporation fixes a record date for the issue or the distribution to the holders of all or substantially all of the outstanding Common Shares of (i) securities of the Corporation, including rights, options or warrants to acquire securities of the Corporation or any of its property or assets and including cash and evidences of indebtedness; or (ii) any property or other assets, including cash and evidences of indebtedness, and if such issuance or distribution does not constitute a Dividend Paid in the Ordinary Course, a Common Share Reorganization, a Rights Offering or a distribution contemplated by Section 5.01(3) (any of such non-excluded events being called a “Special Distribution”), then the Conversion Price will be adjusted effective immediately after such record date so that the same shall it will equal the price determined by multiplying such the Conversion Price in effect immediately prior to on such record date by a fraction:
(a) the effectiveness numerator of which will be:
(i) the product of the Conversion Price reduction contemplated by this subsection (e) by a fraction number of which the numerator shall be Common Shares outstanding on such record date and the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock Common Shares on such record date; less
(ii) the fair market value, as determined by action by the Board of Directors (whose determination, subject to the consent of a Recognized Stock Exchange, will be conclusive), to the holders of Common Shares of such securities or property or other assets so issued or distributed in the Special Distribution; and
(b) the denominator of which will be the product of the number of Common Shares outstanding on such record date and the Current Market Price of the Common Shares on such record date. To the extent that any Special Distribution is not so made, the Conversion Price will be readjusted effective immediately to the Conversion Price which would then be in effect based upon such securities or property or other assets as actually distributed.
(5) If and whenever at any time after the date hereof and prior to the Maturity Date, there is a reclassification of the Common Shares at any time outstanding or change of the Common Shares into other shares or into other securities or other capital reorganization (other than a Common Share Reorganization), or a consolidation, amalgamation or merger of the Corporation with or into any other corporation or other entity (other than a vertical short-form amalgamation with one or more of its Wholly-Owned Subsidiaries pursuant to the Canada Business Corporations Act), or a transfer of the undertaking or assets of the Corporation as an entirety or substantially as an entirety to another corporation or other entity in which the holders of Common Shares are entitled to receive shares, other securities or other property (any of such events being called a “Capital Reorganization”), any Holder of Debentures who exercises the right to convert Debentures into Common Shares pursuant to Debentures then held after the effective date of such Capital Reorganization will be entitled to receive, and will accept for the same aggregate consideration in lieu of the number of Common Shares to which such Holder was previously entitled upon such conversion, the aggregate number of shares, other securities or other property that such holder would have been entitled to receive as a result of such Capital Reorganization if, on the Purchase Date less effective date thereof, the sum holder had been the registered holder of the aggregate amount number of cash Common Shares to which such holder was previously entitled upon conversion subject, however, to any requirements necessary to ensure that the interest payable on the Debentures will be and will remain exempt from Canadian withholding tax including the requirement in effect on the date hereof for so long as such requirement is in effect that a Holder of Debentures will not be entitled to receive shares, other securities or property other than securities that are “prescribed securities” as defined in Regulation 6208 to the Income Tax Act (Canada) on or prior to five years after the date of issue of the Debentures. Subject to the preceding sentence, the Corporation will take all steps necessary to ensure that, on a Capital Reorganization, the Holders of Debentures will receive the aggregate Excess Payments so distributednumber of shares, paid other securities or payable within such 12 month period (including, without limitation, the Excess Payment in respect of other property to which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum they are entitled as a result of the aggregate amount Capital Reorganization. Appropriate adjustments will be made as a result of cash and any such Capital Reorganization in the aggregate Excess Payments so distributed, paid or payable application of the provisions set forth in this Article 5 with respect to outstanding shares the rights and interests thereafter of Class A common stock within such 12 months (includingHolders of Debentures to the end that the provisions set forth in this Article 5 will thereafter correspondingly be made applicable as nearly as may reasonably be in relation to any shares, without limitationother securities or other property thereafter deliverable upon the conversion of any Debenture. Prior to or concurrent with effecting a Capital Reorganization, the Excess Payment Corporation will enter into an indenture supplemental hereto approved by action of the Board of Directors and by the Trustee, relying on advice of counsel, that will set forth an appropriate adjustment to give effect to this Section 5.01(5), in respect of which event such adjustment will for all purposes be conclusively deemed to be an appropriate adjustment, subject to any required prior consent of a Recognized Stock Exchange.
(6) If the purchase price provided for in any rights, options or warrants (the “Rights Offering Price”) referred to in Sections 5.01(3) or (4) is being madedecreased, the Conversion Price will forthwith be changed so as to decrease the Conversion Price to the Conversion Price that would have been obtained if the adjustment to the Conversion Price made under Section 5.01(3) or (4), as the case may be, with respect to such rights, options or warrants had been made on the basis of the Rights Offering Price as so decreased, provided that the terms of this Section 5.01(6) will not apply to any decrease in the Rights Offering Price resulting from terms in any such rights, options or warrants designed to prevent dilution except to the extent that the resulting decrease in the Conversion Price under this Section 5.01(6) would be greater than the decrease, if any, in the Conversion Price to be made under the terms of this Section 5.01(6) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) virtue of the Class A common stock on occurrence of the Purchase Date, event giving rise to such reduction to decrease in the Rights Offering Price.
(7) In any case in which this Section 5.01 requires that an adjustment will become effective immediately prior after a record date for an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the opening Holder of business any Debenture converted after such record date and before the occurrence of such event the additional Common Shares issuable upon such conversion by reason of the adjustment required by such event, provided, however, that the Corporation will deliver to such Holder evidence of such Holder’s right to receive such additional Common Shares upon the occurrence of such event and the right to receive any distributions made on such additional Common Shares declared in favour of holders of record of Common Shares on and after the day following date of conversion or such later date on which such Holder would, but for the Purchase Dateprovisions of this Section 5.01(7), have become the holder of record of such additional Common Shares.
Appears in 2 contracts
Sources: First Supplemental Indenture (Stelco Inc /Fi), First Supplemental Indenture (Stelco Inc /Fi)
Adjustment of Conversion Price. The Conversion Price for each series shall be subject to adjustment adjusted from time to time as follows:
(a) In case the Company shall shall, while any of the Debentures are outstanding, (i) pay a dividend or make a distribution with respect to its Common Stock Series A in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock Series A, (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock into a greater number of shares of Class A common stock or Common Stock Series A, (iviii) combine its outstanding shares of Class Common Stock Series A common stock into a smaller number of shares or (iv) issue by reclassification of Class its shares of Common Stock Series A common stockany shares of capital stock of the Company, the conversion privilege and the Conversion Price for each series of Debentures in effect immediately prior to such action shall be adjusted so that the holder Holder of this Note any Debenture thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common capital stock of the Company which he would have owned immediately following such action had the Note such Debenture been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or other distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification (or immediately after the record date if a record date shall have been established for such event). If, as a result of an adjustment made pursuant to this subsection (a), the Holder of any Debenture thereafter surrendered for conversion shall become entitled to receive shares of two or more classes or series of capital stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a Board Resolution filed with the Trustee) shall determine the allocation of the adjusted Conversion Price for each series of Debentures between or among shares of such classes or series of capital stock.
(b) In case the Company shall shall, while any of the Debentures are outstanding, issue rights, options rights or warrants to all holders of Class its Common Stock Series A common stock entitling them (for a period expiring within 45 days after the record date mentioned below) to subscribe for or purchase shares of Class Common Stock Series A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price current market price per share of Common Stock Series A (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrantsmentioned below, the Conversion Price shall be adjusted so that for the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price Debentures shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of issuance of such distribution rights or warrants by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) number of the Class shares of Common Stock Series A common stock outstanding on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence issuance of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, rights or warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of plus the number of shares which the aggregate offering price of the Class A common stock outstanding on the record date)total number of shares so offered for subscription or purchase would purchase at such current market price, and of which the denominator shall be the number of shares of Common Stock Series A outstanding on the date of issuance of such Current Market Price rights or warrants plus the number of the Class additional shares of Common Stock Series A common stockoffered for subscription or purchase. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock stockholders entitled to receive such distributionrights or warrants. Notwithstanding To the foregoingextent that shares of Common Stock Series A are not so delivered after the expiration of such rights or warrants, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. For the purposes of this subsection, the number of shares of Common Stock Series A at any time outstanding shall not include shares held in the treasury of the Company. The Company shall not issue any rights or warrants in respect of shares of Common Stock Series A held in the treasury of the Company. In case any rights or warrants referred to in this subsection in respect of which an adjustment shall have been made shall expire unexercised within 45 days after the same shall have been distributed or issued by the Company, the Conversion Price shall be readjusted at the time of such expiration to the Conversion Price that would have been in effect if no adjustment had been made on account of the distribution or issuance of such expired rights or warrants.
(c) Subject to the last sentence of this subsection, in case the Company shall shall, by dividend or otherwise, distribute rightsto all holders of its Common Stock Series A evidences of its indebtedness, options or warrants to subscribe for additional shares of Company's any class or series of capital stock (other than rightsCommon Stock Series A), options cash or assets (including securities, but excluding any rights or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by any dividend or otherwise, at any time make a distribution to all holders of its Class A common stock paid exclusively in cash (including and any distributions of cash out of current dividend or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant referred to in subsection (ca) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such the Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (c) by a fraction of which the numerator shall be
(d) In case the Company shall pay or make a dividend or other distribution on its Common Stock Series A exclusively in cash (excluding all regular cash dividends if the annualized amount thereof per share of Common Stock Series A does not exceed 15% of the current market price per share (determined as provided in subsection (f)) of the Common Stock Series A on the Trading Day next preceding the date of declaration of such dividend, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection by a fraction of which the numerator shall be the Current Market Price current market price per share 25 (determined as provided in subsection (f) of this Section)) of the Class Common Stock Series A common stock on the Distribution Record Date date fixed for the payment of such distribution less the sum of the aggregate amount of cash so distributed and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) not excluded as provided applicable to one share of Class Common Stock Series A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price current market price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record DateCommon Stock Series A, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary date fixed for the payment of Company for all or any such distribution; provided, however, that in the event the portion of the Class -------- ------- cash so distributed applicable to one share of Common Stock Series A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer equal to or other negotiated transaction and greater than the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price market price per share (determined as provided in subsection (f) of this Section)) of the Class Common Stock Series A common stock on the Purchase Date multiplied record date mentioned above, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of Debentures shall have the right to receive upon conversion the amount of cash such Holder would have received had such Holder converted such Debentures immediately prior to the record date for the distribution of the cash. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such record date had not been fixed.
(e) In case a tender or exchange offer (other than an odd-lot offer) made by the number Company or any Subsidiary of shares the Company for all or any portion of Class the Company's Common Stock Series A common stock outstanding shall expire and such tender or exchange offer shall involve the payment by the Company or such Subsidiary of consideration per share of Common Stock Series A having a fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) at the last time (the "Expiration Time") tenders or exchanges may be made pursuant to such tender or exchange offer (as it shall have been amended) that exceeds 110% of the current market price per share (determined as provided in subsection (f)) of the Common Stock Series A on the Purchase Date (including any tendered shares but excluding any shares held in Trading Day next succeeding the treasury of Company)Expiration Time, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such the Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price number of shares of Common Stock Series A outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the current market price per share (determined as provided in subsection (f) of this Section)) of the Class Common Stock Series A common stock on the Purchase Date less Trading Day next succeeding the Expiration Time and the denominator shall be the sum of (x) the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period fair market value (including, without limitation, the Excess Payment in respect of which such adjustment is being madedetermined as aforesaid) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount consideration payable to holders based on the acceptance (up to any maximum specified in the terms of cash the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the aggregate Excess Payments Expiration Time (the shares deemed so distributedaccepted, paid or payable with respect up to outstanding shares any such maximum, being referred to as the "Purchased Shares") and (y) the product of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class Common Stock Series A common outstanding (less any Purchased Shares) at the Expiration Time and the current market price per share
(f) For the purpose of any computation under subsections (b), (c), (d) or (e), the current market price per share of Common Stock Series A on any date in question shall be deemed to be the average of the daily Average Market Prices for the five consecutive Trading Days selected by the Company commencing not more than 20 Trading Days before, and ending not later than, the earlier of the day in question and, if applicable, the day before the "ex" date with respect to the issuance or distribution requiring such computation; provided, however, that if -------- ------- another event occurs that would require an adjustment pursuant to subsections (a) through (e), inclusive, the Board of Directors may make such adjustments to the Average Market Prices during such five Trading Day period as it deems appropriate to effectuate the intent of the adjustments in this Section, in which case any such determination by the Board of Directors shall be conclusive. For purposes of this paragraph, the term "ex" date, (1) when used with respect to any issuance or distribution, means the first date on which the Common Stock Series A trades regular way on the NYSE or on such successor securities exchange as the Common Stock Series A may be listed or in the relevant market from which the Average Market Prices were obtained without the right to receive such issuance or distribution, and (2) when used with respect to any tender or exchange offer means the first date on which the Common Stock Series A trades regular way on such securities exchange or in such market after the Expiration Time of such offer.
(g) The Company may make such reductions in the Conversion Price, in addition to those required by subsections (a) through (e) as it considers to be advisable to avoid or diminish any income tax to holders of Common Stock Series A or rights to purchase Common Stock Series A resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes. The Company from time to time may reduce the Conversion Price by any amount for any period of time if the period is at least twenty (20) days, the reduction is irrevocable during the period, and the Board of Directors of the Company shall have made a determination that such reduction would be in the best interest of the Company, which determination shall be conclusive. Whenever the Conversion Price is reduced pursuant to the preceding sentence, the Company shall mail to Holders of the Debentures a notice of the reduction at least fifteen (15) days prior to the date the reduced Conversion Price takes effect, and such notice shall state the reduced Conversion Price and the period it will be in effect.
(h) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price; provided; however; that any adjustments which -------- ------- by reason of this subparagraph (i) are not required to be made shall be carried forward and taken into account in determining whether any subsequent adjustment shall be required.
(i) Notwithstanding the foregoing provisions, the issuance of any shares of Common Stock Series A pursuant to any plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in shares of Common Stock Series A under any such plan, and the issuance of any shares of Common Stock Series A or options or rights to purchase such shares pursuant to any employee benefit plan or program of the Company or pursuant to any option, warrant, right or exercisable, exchangeable or convertible security outstanding on the Purchase Date) and date the denominator Debentures are first issued, shall not be such Current Market deemed to constitute an issuance of Common Stock Series A or exercisable, exchangeable or convertible securities by the Company to which any of the adjustment provisions described above applies. There shall also be no adjustment of the Conversion Price per share in case of the issuance of any stock (determined as provided in subsection (f) of this Sectionor securities convertible into or exchangeable for stock) of the Class A common stock on Company except as specifically described in this Article Five.
(j) If any action would require adjustment of the Purchase DateConversion Price pursuant to more than one of the provisions described above, only one adjustment shall be made and such reduction to become effective immediately prior adjustment shall be the amount of adjustment that has the highest absolute value to the opening Holder of business on the day following the Purchase DateDebentures.
Appears in 2 contracts
Sources: First Supplemental Indenture (Citizens Utilities Capital L P), First Supplemental Indenture (Citizens Utilities Capital L P)
Adjustment of Conversion Price. The Conversion Price with respect to Convertible Securities of a series shall be subject to adjustment adjusted from time to time as follows:
follows with respect to events that take place after the initial issuance of any Securities of such series: (a) In case if the Company shall (i1) pay a dividend in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock on the Common Stock, (iii2) subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock or shares, (iv3) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares or (4) issue by reclassification of Class A common stockits Common Stock any shares of capital stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted deemed to be proportionately adjusted, so that the holder any Holder of this Note any Convertible Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common Common Stock or other capital stock of the Company which he would have owned or been entitled to receive immediately following such action had the Note such Convertible Security been converted immediately prior thereto. Any If in any reclassification the holders of Common Stock are entitled to make an election between different forms of consideration, the Holders shall be deemed to have elected to receive the consideration payable to a plurality of the holders of Common Stock who have not duly filed elections as to the consideration to be received. An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (f) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification.
(b) In case Company shall issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
Appears in 2 contracts
Sources: Senior Debt Indenture (Hasbro Inc), Senior Debt Indenture (Hasbro Inc)
Adjustment of Conversion Price. The Conversion Price conversion price applicable to the Debt Securities of any series shall be subject to adjustment from time to time as follows:
(a) In case Company Unilever N.V. shall (i1) pay a dividend in shares of Class A common stock or make a distribution to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)N.V. Shares in N.V. Shares, (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii2) subdivide its outstanding shares of Class A common stock N.V. Shares into a greater number of shares of Class A common stock or shares, (iv3) combine its outstanding shares of Class A common stock N.V. Shares into a smaller number of shares or (4) issue any shares by reclassification of Class A common stockits N.V. Shares, the Conversion Price conversion price in effect immediately prior to such action shall be adjusted so that the holder Holder of this Note any Debt Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock N.V. Shares which he would have owned or have been entitled to receive immediately following such action had the Note such Debt Security been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (e) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case Company Unilever N.V. shall issue rights, options rights or warrants to all holders of Class A common stock N.V. Shares entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) N.V. Shares at a price per share (or having a conversion price per share) less than the Current Market Price current market price per share N.V. Share (as determined pursuant to subsection (fd) below) of the Class A common stock on the record date for determining mentioned below, the holders conversion price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by multiplying:
(1) the conversion price in effect immediately prior to the date of issuance of such rights or warrants by a fraction, of which
(2) the numerator shall be (A) the number of N.V. Shares outstanding on the date of issuance of such rights or warrants immediately prior to such issuance, plus (B) the number of shares which the aggregate offering price (in United States dollars) of the Class A common stock total number of shares so offered would purchase at such current market price (determined by multiplying such total number of shares by the exercise price of such rights or warrants and dividing the product so obtained by such current market price), and of which
(3) the denominator shall be (A) the number of N.V. Shares outstanding on the date of issuance of such rights or warrants immediately prior to such issuance, plus (B) the number of additional N.V. Shares which are so offered for subscription or purchase. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately, except as provided in subsection (e) below, after the record date for the determination of holders entitled to receive such rightsrights or warrants. In determining whether any rights or warrants entitle the holders to subscribe for or purchase N.V. Shares at less than such current market price, options and in determining the aggregate offering price of such N.V. Shares, there shall be taken into account any consideration received by Unilever N.V. for such rights or warrants, the Conversion Price value of such consideration, if other than cash, to be determined, in good faith, by the Board of Directors of Unilever N.V.
(c) In case Unilever N.V. shall distribute to all holders of N.V. Shares evidences of indebtedness, equity securities other than N.V. Shares or other assets (other than cash dividends or cash distributions payable out of retained earnings), or shall distribute to all holders of N.V. Shares rights or warrants to subscribe for or purchase any of its securities (other than those referred to in subsection (b) above), then in each such case the conversion price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per N.V. Share (determined as provided in subsection (fd) below) of the Class A common stock on the record date mentioned below less the then fair market value on such record date (in United States dollars) (as determined by the Board of Directors, Directors of Unilever N.V. whose determination shall shall, if made in good faith, be conclusive evidence of such fair market value and described in a board resolutionconclusive) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants equity securities or other assets so distributed or of such subscription rights or warrants applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), N.V. Share and of which the denominator shall be such Current Market Price of the Class A common stockcurrent market price per N.V. Share (determined as provided in subsection (d) below). Such adjustment shall become effective immediately immediately, except as provided in subsection (e) below, after the record date for the determination of the holders of Class A common stock stockholders entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at For the purpose of any time make a distribution to all holders of its Class A common stock exclusively in cash computation under subsections (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection b) and (c) above, the current market price per N.V. Share at any date shall be deemed to be the average of this Section) the daily Closing Prices on the 5 consecutive Trading Days commencing not more than 20 Trading Days before the date in an aggregate amount that, together with the sum of question. The term “Closing Price” on any Trading Day shall mean (xi) the aggregate amount last reported sales price per N.V. Share on such Trading Day on the New York Stock Exchange, or if not reported on such Exchange, on the Composite Tape, or, in case no such reported sale takes place on such Trading Day, the average of any the reported closing bid and asked quotations on the New York Stock Exchange on such Trading Day, (ii) if the N.V. Shares are not listed or admitted for trading on the New York Stock Exchange, the last reported sales price on such other distributions made exclusively in cash to all holders national securities exchange on which the N.V. Shares are admitted for trading as may be designated by the Board of Class A common stock within Directors of Unilever N.V. for the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) purposes hereof, or (eiii) of this Section if the N.V. Shares are not listed or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of admitted for trading on any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company)national securities exchange, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.last reported sales or
Appears in 1 contract
Sources: Indenture (Unilever N V)
Adjustment of Conversion Price. The conversion price (the "Conversion Price Price") shall be subject to adjustment that price set forth in paragraph 9 of the form of Note attached hereto as Exhibit A and shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall (i) pay a dividend or other distribution in shares of Class A common stock Common Stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock or shares, (iviii) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares of Class A common stockor (iv) reclassify its outstanding Common Stock, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of this any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock Common Stock which he it would have owned immediately following or have been entitled to receive had such action had the Note been converted immediately prior theretoto the happening of such event. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification.
(b) In case the Company shall issue rights, options to all or warrants to substantially all holders of Class A common stock its Common Stock, rights, warrants or options entitling them such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Class A common stock Common Stock (or securities convertible into Class A common stockCommon Stock) at a price per share (or having a conversion price per share) less than the Current Market Price current market price per share of Common Stock (as determined pursuant to in accordance with subsection (fe) below) of the Class A common stock on at the record date for determining the holders determination of the Class A common stock stockholders entitled to receive such rights, options warrants or warrantsoptions, the Conversion Price in effect immediately prior thereto shall be adjusted so that the same Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction fraction, the numerator of which the numerator shall be the number of shares of Class A common stock Common Stock outstanding as of the close of business on such record date date, plus the number of shares of Class A common stock which the aggregate offering subscription or purchase price of for the total number of shares of Class A common stock Common Stock offered by the rights, warrants or options so offered (to the holders of outstanding Class A common stock) for subscription or purchase issued (or the aggregate conversion price of the convertible securities so offeredoffered by such rights, warrants or options) would purchase at such Current Market Price (as determined pursuant to subsection (f) below)current market price, and the denominator of which the denominator shall be the number of shares of Class A common stock Common Stock outstanding on such record date plus the number of additional shares of Class A common stock so Common Stock offered for subscription by such rights, warrants or purchase options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustments adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. For If at the purposes end of this subsection the period during which such rights, warrants or options are exercisable not all rights, warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (b), or the number of shares of Class A common stock at any time outstanding shall not include shares held in Common Stock issuable upon conversion of convertible securities actually issued) for the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions total number of shares of such Class A common stock. The Company shall not issue any rights, options Common Stock offered (or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directorsconvertible securities offered).
(c) In case the Company shall distribute to all or substantially all holders of Class A common stock its Common Stock any shares of capital stock Capital Stock of the Company (other than Class A common stock), Common Stock) or evidences of indebtednessits Indebtedness, cash, other securities or other assets, (excluding (i) rights, options or and warrants entitling the holders thereof referred to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) above or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (df) below, ; (ii) dividends those dividends, distributions, subdivisions and distributions described combinations referred to in subsection (a) above above; and (iii) dividends and distributions paid in connection cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the consolidationpreceding 12 months in respect of which no adjustment has been made under this Section 12.06 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries, merger or transfer of assets covered by Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 9.1112.06, does not exceed 10% of Market Capitalization as of the record date for such distribution), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution or purchase by a fraction fraction, the numerator of which the numerator shall be the Current Market Price current market price per share (determined as provided defined in subsection (fe) below) of the Class A common stock Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolutionvalue) of the portion of the capital stock or evidences of indebtedness, shares of capital stock, cash, rights, options, warrants securities or other assets so distributed distributed, in each case as applicable to one share of Class A common stock Common Stock, and the denominator of which shall be the current market price per share (determined on the basis as defined in subsection (e) below) of the number of shares of the Class A common stock outstanding Common Stock on the such record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock stockholders entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries shall repurchase (including by way of tender offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for Class A common stock concluded such Common Stock, (ii) the aggregate fair market value of cash dividends and distributions of the type described in clause (iii) of the preceding paragraph (c) paid within the 12 twelve (12) months preceding the Distribution Record Date and date of purchase of such shares of Common Stock in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or 12.06 previously has been made, and (iii) the aggregate fair market value of any amounts previously paid for the repurchase of Common Stock of a type described in this subsection paragraph (d) within the twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 12.06 previously has been made, exceeds 12 1/210% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock Capitalization on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company)date of, and after giving effect to, such repurchase, then the Conversion Price shall be reduced adjusted so that the same shall equal the price determined by multiplying such the Conversion Price in effect immediately prior to the effectiveness date of the Conversion Price reduction contemplated by this subsection (d) such distribution or purchase by a fraction fraction, the numerator of which the numerator shall be the Current Market Price current market price per share (determined as provided defined in subsection (fe) of this Sectionbelow) of the Class A common stock Common Stock on the Distribution Record Date date of such repurchase, less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined quotient obtained by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within Aggregate Market Premium involved in such 12 months repurchase (including, without limitation, the distribution in respect of which such adjustment is being madeas defined hereinafter) by the difference between the number of shares of Class A common stock Common Stock outstanding on before such repurchase and the Distribution Record Date) number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be such Current Market Price the current market price per share (determined as provided defined in subsection (fe) of this Sectionbelow) of the Class A common stock Common Stock on the Distribution Record Date, date of such reduction to repurchase. Such adjustment shall become effective immediately prior after the date of such repurchase. For purposes of this subsection (d), the "Aggregate Market Premium" is the excess, if any, of the aggregate repurchase price paid for all such Common Stock over the aggregate current market value per share (as defined in subsection (e) below) of all such repurchased stock, determined with respect to each share involved in each such repurchase as of the opening date of business on the day following the Distribution Record Daterepurchase with respect to such share.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of For the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount purpose of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash computation under subsections (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"b), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or and (d) above, the current market price per share of this Section Common Stock on any date shall be deemed to be the average of the Closing Prices for 20 consecutive Trading Days commencing 30 Trading Days before the record date with respect to any distribution, issuance or this subsection other event requiring such computation. The Closing Price for each day shall be (e) has been made plus (yi) the aggregate amount last sale price, or the closing bid price if no sale occurred, of all Excess Payments in respect such class of stock on the principal securities exchange on which such class of stock is listed, if the Common Stock is listed or admitted for trading on any other tender offers or other negotiated transactions by Company national securities exchange, (ii) the last reported sale price of Common Stock on the New York Stock Exchange, or any similar system of its Subsidiaries automated dissemination of quotations of securities prices then in common use, if so quoted, or (iii) if not quoted as described in clause (i), the mean between the high bid and low asked quotations for Class A common Common Stock as reported by the National Quotation Bureau Incorporated if at least two securities dealers have inserted both bid and asked quotations for such class of stock concluded within on at least 5 of the 12 months 10 preceding days. If the Purchase Date and Common Stock is quoted on a national securities or central market system, in respect lieu of which no adjustment a market or quotation system described above, the Closing Price shall be determined in the Conversion Price pursuant to subsection manner set forth in clause (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Sectioniii) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash preceding sentence if bid and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.asked quotations are
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (i1) pay a dividend in shares of Class A common stock Series D Preferred Stock to all holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Series D Preferred Stock, (ii2) make a distribution in shares of Class A common stock Series D Preferred Stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Series D Preferred Stock, (iii3) subdivide its outstanding shares of Class A common stock Series D Preferred Stock into a greater number of shares of Class A common stock Series D Preferred Stock or (iv4) combine its outstanding shares of Class A common stock Series D Preferred Stock into a smaller number of shares of Class A common stockSeries D Preferred Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of this any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock Series D Preferred Stock which he would have owned immediately following such action had the Note such Notes been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights, options Series D Equivalents to all or warrants to substantially all holders of Class A common stock Series D Preferred Stock or to any other Person (other than the Holders) entitling them such Person or Persons to subscribe for for, purchase or purchase otherwise acquire shares of Class A common stock Series D Preferred Stock (or securities convertible into Class A common stockin any manner representing the right to acquire Series D Preferred Stock) at a price per share (or having a conversion price per share) that is less than the then Current Market Price per share of Series D Preferred Stock (as determined pursuant to in accordance with subsection (f) below) of the Class A common stock on at the record date for determining the holders determination of the Class A common stock shareholders entitled to receive such rightsSeries D Equivalents on the date of issuance thereof or, options or warrantswith respect to issuances to Persons other than shareholders, on the issue date, as applicable, the Conversion Price in effect immediately prior thereto shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date or issue date, as applicable, by a fraction of which the numerator shall be the number of shares of Class A common stock Series D Preferred Stock outstanding as of the close of business on such record date or issue date, as applicable, plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock Series D Preferred Stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to defined in subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock Series D Preferred Stock outstanding on such record date or issue date, as applicable, plus the number of additional shares of Class A common stock so Series D Preferred Stock offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments adjustment shall be made successively whenever any Series D Equivalents are issued, and shall become effective immediately after such record date or such issue date, as applicable. For If at the purposes end of this subsection the period during which such Series D Equivalents are exercisable not all such Series D Equivalents shall have been exercised, the adjusted Conversion Price shall be readjusted to what it would have been based upon the number of additional shares of Series D Preferred Stock actually issued (b), or the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury Series D Preferred Stock issuable upon conversion of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directorsconvertible securities actually issued).
(c) In case the Company shall distribute to all or substantially all holders of Class A common stock Series D Preferred Stock any shares of capital stock of the Company (other than Class A common stock)Series D Preferred Stock, evidences of indebtednessindebtedness or other non-cash assets (including securities of any Person other than the Company), cash, rights, options or shall distribute to all or substantially all holders of Series D Preferred Stock rights or warrants entitling the holders thereof to subscribe for or purchase any of its securities (other than rights, options or warrants described excluding those referred to in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price per share (determined as provided defined in subsection (f) below) of the Class A common stock Series D Preferred Stock on the record date mentioned below less the fair market value on such record date (as determined agreed to by the Board of DirectorsCompany and the Majority Holders (or, whose determination shall be conclusive evidence of such fair market value and described if not so agreed, as determined in a board resolutionmanner similar to that used to determine Current Market Price as provided in the last sentence of subsection (f) below)) of the portion of the capital stock or assets or evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets indebtedness so distributed or of such rights or warrants applicable to one share of Class A common stock Series D Preferred Stock (determined on the basis of the number of shares of the Class A common stock Series D Preferred Stock outstanding on the record date), and of which the denominator shall be such the Current Market Price per share (determined as provided in subsection (f) below) of the Class A common stockSeries D Preferred Stock on such record date. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock shareholders entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: .
(i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution DateDISTRIBUTION DATE"), the same number of Rights to which a holder of a number of shares of Class A common stock Series D Preferred Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; Rights and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock Series D Preferred Stock into which the principal amount Accreted Value of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case the Company shall, by dividend or otherwise, at any time make a distribution distribute to all holders of its Class A common stock exclusively in Common Stock and, if any shares thereof are outstanding, Series D Preferred Stock cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Sectionthe Company) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock Common Stock and, if any shares thereof are outstanding, Series D Preferred Stock made in cash plus (y) all Excess Payments in respect of Common Stock and, if any shares thereof are outstanding, Series D Preferred Stock, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record DateDISTRIBUTION RECORD DATE") and in respect of which no Conversion Price adjustment pursuant to subsection paragraphs (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section 5.06 or this subsection (d) has been made, exceeds 12 1/2% five percent (5%) of the product of the Current Market Price per share (determined as provided in subsection (f) of this Sectionbelow) of the Class A common stock Common Stock on the Distribution Record Date multiplied by times the sum of (i) the number of shares of Class A common stock Common Stock and (ii) if any shares of Series D Preferred Stock are outstanding, the number of Common Stock equivalents represented by such shares of Series D Preferred Stock, in each case outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Sectionbelow) of the Class A common stock Common Stock on the Distribution Record Date less the sum amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share (based on the pro rata portion of the aggregate amount of such cash and the aggregate other consideration (including any Excess Payments so distributed, Payments) paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined the Common Stock, divided by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock Common Stock outstanding on the Distribution Record Date) of Common Stock and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Sectionbelow) of the Class A common stock Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of Company for all or any portion of the Class A common stock Common Stock and, if any shares thereof are outstanding, the Series D Preferred Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments in respect of Common Stock and, if any distributionsshares thereof are outstanding, by dividend or otherwise, Series D Preferred Stock plus (y) the aggregate amount of all distributions to all holders of the Class A common stock Common Stock and, if any shares thereof are outstanding, Series D Preferred Stock made in cash (specifically including any distributions of cash out of current or retained earnings of Company) earnings), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase DateREPURCHASE DATE"), and as to which no adjustment in the Conversion Price pursuant to subsection paragraph (c) or paragraph (d) of this Section 5.06 or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection paragraph (e) has been made, exceeds 12 1/2% five percent (5%) of the product of the Current Market Price per share (determined as provided in subsection (f) of this Sectionbelow) of the Class A common stock Common Stock on the Purchase Repurchase Date multiplied by times the sum of (i) the number of shares of Class A common stock Common Stock and (ii) if any shares of Series D Preferred Stock are outstanding, the number of Common Stock equivalents represented by such shares of Series D Preferred Stock, in each case outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of the Company)) on the Repurchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Sectionbelow) of the Class A common stock Common Stock on the Purchase Repurchase Date less the sum amount of such Excess Payments and such cash distributions, if any, applicable to one share (based on the pro rata portion of the aggregate amount of cash and the aggregate such Excess Payments so distributed, and such cash distributions paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined the Common Stock, divided by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock Common Stock outstanding on the Purchase Repurchase Date) of Common Stock and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Sectionbelow) of the Class A common stock Common Stock on the Purchase Repurchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Repurchase Date.
(f) For the purpose of any computation under subsections (b), (c), (d) and (e) of this Section 5.06, the current market price (the "CURRENT MARKET PRICE") per share of Common Stock or Series D Preferred Stock (the "APPLICABLE STOCK") on any date shall be deemed to be equal to the average of the daily closing prices of the Applicable Stock on the NYSE or, if not then listed or traded on the NYSE, such other national securities exchange or the NASDAQ National Market if the Applicable Stock is then listed or traded thereon, for the 10 trading days immediately prior to the record date or date of issuance with respect to distributions, issuances or other events requiring such computation under subsection (b), (c), (d) or (e) above; provided that in the case of an underwritten public offering of Series D Equivalents which are currently traded, the Current Market Price shall be the closing price of the Series D Preferred Stock on the issuance date, less an allowance for a customary discount to the current market trading price which is reasonably required to effect such offering. The closing price for each day shall be the closing price on the NYSE or the last reported sales price or, if the shares of Applicable Stock are not listed or admitted to trading on the NYSE, on the principal national securities exchange on which the shares of the Applicable Stock are listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, the closing sales price of the Applicable Stock as quoted on the NASDAQ National Market. Notwithstanding the provisions of this subsection (f), if (i) the Applicable Stock is listed or traded on the NYSE or other national securities exchange or quoted on the NASDAQ National Market, but either (A) the prices described in this subsection (f) are not available or (B) the Majority Holders determine that such prices do not adequately reflect the fair value of the Applicable Stock due to limited float or trading volume, or (ii) the Applicable Stock is not listed on the NYSE or other national securities exchange or quoted on the NASDAQ National Market, the Current Market Price shall be the fair value of the Applicable Stock as agreed by the Company and the Majority Holders or if the Company and Majority Holders are unable to agree, the fair value of the Applicable Stock as determined by a nationally recognized investment bank selected jointly by the Company and the Majority Holders (or if they are unable to agree on such investment bank, as determined by a nationally recognized investment bank selected by lot by the Board of Directors from a total of four such investment banks (two of which shall be selected by the Company and two of which shall be selected by the Majority Holders)).
(g) In any case in which this Section 5.06 shall require that an adjustment be made following a record date the Company may elect to defer (but only until five Business Days following the mailing by the Company to the holders of the notice of adjustment described in Section 5.10 below) issuing to the Holder of a Note converted after such record date the Conversion Shares and other capital stock of the Company issuable upon such conversion over and above the Conversion Shares and other capital stock of the Company issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence prepared by the Company of the right to receive such shares.
(h) The shares of Series D Preferred Stock shall be subject to the antidilution adjustments set forth in their certificate of designation from the date hereof, regardless of whether there are any shares of Series D Preferred Stock outstanding.
(i) The fees and expenses of any investment bank retained to make any determination under this Indenture shall be paid by the Company.
Appears in 1 contract
Sources: Securities Purchase Agreement (American Skiing Co /Me)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case If the Company shall (i) pay a dividend or other distribution, in shares Common Stock, on any class of Class A common stock to holders Capital Stock of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)the Company, (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its the outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock by any means or (iviii) combine its the outstanding shares of Class A common stock Common Stock into a smaller number of shares of Class A common stockby any means (including, without limitation, a reverse stock split), then in each such case the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of this any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which he Common Stock that such Holder would have owned immediately following or have been entitled to receive upon the happening of such action event had the such Note been converted immediately prior theretoto the relevant record date or, if there is no such record date, the effective date of such event. Any An adjustment made pursuant to this subsection (aSection 1204(a) shall become effective immediately after the record date in for the case determination of a stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a such subdivision or combination, as the case may be.
(b) In case If the Company shall (i) issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock distribute (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock such Capital Stock on the record date for determining the of such issuance or distribution) Capital Stock generally to holders of the Class A common stock entitled Common Stock or to receive such rights, options holders of any class or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price series of Capital Stock which is convertible into or exchangeable or exercisable for Common Stock (excluding an issuance or distribution of Common Stock described in effect immediately prior Section 1204(a)) or (ii) issue or distribute generally to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants convertible or exchangeable securities entitling the holders holder thereof to subscribe for, purchase, convert into or exchange for or purchase securities (other Capital Stock at a price per share less than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock Capital Stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.the
Appears in 1 contract
Sources: Indenture (Westbridge Capital Corp)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (i1) pay a dividend in shares of Class A common stock Common Stock to all holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (ii2) make a distribution in shares of Class A common stock Common Stock to all holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (iii3) subdivide its the outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock Common Stock or (iv4) combine its the outstanding shares of Class A common stock Common Stock into a smaller number of shares of Class A common stockCommon Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of this Note any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock Common Stock which he such Holder would have owned immediately following such action had the Note such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (aSECTION 10.7(a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights, options rights or warrants to all holders of Class A common stock Common Stock, entitling them them, for a period expiring not more than sixty (60) days immediately following the record date for the determination of holders of Common Stock entitled to receive such rights or warrants, to subscribe for or purchase shares of Class A common stock Common Stock (or securities convertible into Class A common stock) or exchangeable or exercisable for Common Stock), at a price per share (or having a conversion conversion, exchange or exercise price per share) that is less than the Current Market Price per share current market price (as determined pursuant to subsection (f) belowSECTION 10.7(e)) of the Class A common stock Common Stock on the record date for determining the determination of holders of the Class A common stock Common Stock entitled to receive such rights, options rights or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined increased by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which (A) the numerator shall be the sum of (I) the number of shares of Class A common stock Common Stock outstanding as of at the close of business on such record date plus and (II) the number of shares of Class A common stock Common Stock which the aggregate offering exercise, conversion, exchange or other price of at which the total number of shares of Class A common stock so offered Underlying Shares (as defined below) may be subscribed for or purchased pursuant to the holders of outstanding Class A common stock) for subscription such rights or purchase (or the aggregate conversion price of the convertible securities so offered) warrants would purchase at such Current Market Price current market price and (as determined pursuant to subsection (fB) below), and of which the denominator shall be the sum of (I) number of shares of Class A common stock Common Stock outstanding at the close of business on such record date plus and (II) the aggregate number of additional shares (the "UNDERLYING SHARES") of Class A common stock so offered for subscription Common Stock underlying all such issued rights or purchase warrants (whether by exercise, conversion, exchange or into which the convertible securities so offered are convertibleotherwise). Such adjustments increase shall become effective immediately after prior to the opening of business on the day following such record date. For In no event shall the purposes of Conversion Price be increased pursuant to this subsection (bSECTION 10.7(b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case the Company shall dividend or distribute to all holders of Class A common stock Common Stock shares of capital stock Capital Stock of the Company (other than Class A common stockCommon Stock), evidences of indebtednessIndebtedness or other assets, cash, rights, options or shall dividend or distribute to all holders of Common Stock rights or warrants entitling the holders thereof to subscribe for or purchase securities (other than rightsthose referred to in SECTION 10.7(b)), options or warrants described in subsection if these distributions, aggregated on a rolling twelve (b12) abovemonth basis, have a per share value exceeding fifteen percent (15%) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer market price of assets covered by Section 9.11)the Company's common stock on the Trading Day immediately preceding the declaration of the distribution, then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined decreased by multiplying the Conversion Price in effect immediately prior to the close of business on the record date for the determination of shareholders entitled to such dividend or distribution by a fraction of which (A) the numerator shall be the Current Market Price current market price of Common Stock (as determined as provided in subsection (fpursuant to SECTION 10.7(e)) below) of the Class A common stock on the such record date mentioned below less and (B) the denominator shall be an amount equal to (I) such current market price plus (II) the fair market value on such record date (as determined in good faith by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) Board Resolution), on such record date, of the portion of the shares of Capital Stock, evidences of indebtednessIndebtedness, shares of capital stockassets, cash, rights, options, rights and warrants to be dividended or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record DateCommon Stock, such reduction increase to become effective immediately prior to the opening of business on the day following such record date; provided, however, that if such denominator is equal to or less than one, then, in lieu of the Distribution Record Dateforegoing adjustment to the Conversion Price, adequate provision shall be made so that each Holder shall have the right to receive upon conversion of its Securities, in addition to the shares of Common Stock issuable (and cash, if any, payable) upon such conversion, an amount of shares of Capital Stock, evidences of Indebtedness, assets, rights and/or warrants that such Holder would have received had such Holder converted all of its Securities on such record date.
(d) In addition to the foregoing adjustments in SUBSECTIONS (a), (b) and (c) above, the Company, from time to time and to the extent permitted by law, may decrease the Conversion Price by any amount for a period of at least twenty (20) days or such longer period as may be required by law, if the Board of Directors has made a determination, which determination shall be conclusive, that such decrease would be in the best interests of the Company. Such Conversion Price increase shall be irrevocable during such period. The Company shall give notice to the Trustee and cause notice of such decrease to be mailed to each Holder of Securities at such Holder's address as the same appears on the registry books of the Registrar, at least fifteen (15) days prior to the date on which such decrease commences.
(e) In case a tender offer For the purpose of any computation under SUBSECTIONS (a), (b) or other negotiated transaction made by Company or any Subsidiary (c) above of Company this SECTION 10.7, the current market price per share of Common Stock on the date fixed for all or any portion determination of the Class A common stock shall be consummated, if an Excess Payment is made in respect of shareholders entitled to receive the issuance or distribution requiring such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be computation (the "Purchase DETERMINATION DATE") shall be deemed to be the average of the Closing Sale Prices for the ten (10) consecutive Trading Days immediately preceding the Determination Date; provided, however, that (i) if the "), and as ex" date for any event (other than the event requiring such computation) that requires an adjustment to which no adjustment in the Conversion Price pursuant to subsection SUBSECTION (a), (b), or (c), above occurs on or after the tenth (10th) Trading Day prior to the Determination Date, and prior to the "ex" date for the issuance or distribution requiring such computation, the Closing Sale Price for each Trading Day prior to the "ex" date for such other event shall be adjusted by multiplying such Closing Sale Price by the reciprocal of the fraction by which the Conversion Price is so required to be adjusted as a result of such other event, (dii) of this Section or this subsection if the "ex" date for any event (eother than the event requiring such computation) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no that requires an adjustment in to the Conversion Price pursuant to subsection SUBSECTION (a), (b), or (c), above occurs on or after the "ex" date for the issuance or distribution requiring such computation and on or prior to the Determination Date, the Closing Sale Price for each Trading Day on and after the "ex" date for such other event shall be adjusted by multiplying such Closing Sale Price by the same fraction by which the Conversion Price is so required to be adjusted as a result of such other event, and
(f) if the "ex" date for the event requiring such computation is on or prior to the Determination Date, after taking into account any adjustment required pursuant to CLAUSE (di) OR (ii) of this Section or proviso, the Closing Sale Price for each Trading Day on and after such "ex" date shall be adjusted by adding thereto the amount of any cash and the fair market value (as determined in good faith by the Board of Directors in a manner consistent with any determination of such value for the purposes of this subsection (e) has been madeSECTION 10.7, exceeds 12 1/2% whose determination shall be conclusive and described in a Resolution of the product Board of the Current Market Price per share (determined as provided in subsection (f) of this SectionDirectors) of the Class A common stock on the Purchase Date multiplied by the number evidences of Indebtedness, shares of Class A common stock outstanding on the Purchase Date Capital Stock or other securities or assets or cash being distributed (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying event requiring such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being madecomputation) applicable to one share of Class A common stock (which shall be determined by dividing the sum Common Stock as of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening close of business on the day following before such "ex" date. For purposes of this subsection, the Purchase Dateterm "ex" date, (i) when used with respect to any issuance or distribution, means the first date on which the Common Stock trades the regular way on the relevant exchange or in the relevant market from which the Closing Sale Price was obtained without the right to receive such issuance or distribution, (ii) when used with respect to any subdivision or combination of shares of Common Stock, means the first date on which the Common Stock trades the regular way on such exchange or in such market after the time at which such subdivision or combination becomes effective, and (iii) when used with respect to any tender offer or exchange offer means the first date on which the Common Stock trades the regular way on such exchange or in such market after the expiration time of such tender offer or exchange offer (as it may be amended or extended).
Appears in 1 contract
Sources: Indenture (Terremark Worldwide Inc)
Adjustment of Conversion Price. The conversion price or rate (herein called the "Conversion Price Price") for a series of Securities shall be as set forth in a Board Resolution, Officer's Certificate or executed supplemental indenture referred to in Sections 2.01 and 2.02 by or pursuant to which the form and terms of the Securities of such series were established, and, except as otherwise provided therein, shall be subject to adjustment from time to time as follows:
(a) In case Company TLGI shall (i1) pay a dividend in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock on the Common Stock, (iii2) subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock or shares, (iv3) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares, (4) issue by reclassification of its Common Stock any shares of Class A common stockcapital stock of TLGI or (5) redeem any Associated Rights, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of this Note any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common Common Stock or other capital stock of TLGI which he would have owned immediately following such action had the Note such Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (e) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification. If as a result of an adjustment made pursuant to this subsection (a), the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of capital stock (including shares of Common Stock and other capital stock) of TLGI, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed with the Trustee) shall determine the allocation of the adjusted Conversion Price between or among shares of such classes of capital stock or shares of Common Stock and other capital stock.
(b) In case Company TLGI shall issue rights, options rights or warrants to all holders of Class A common stock Common Stock entitling them (for a period not exceeding 45 days from the date of such issuance) to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) Common Stock at a price per share (or having a conversion price per share) less than the Current Market Price current market price per share (as determined pursuant to subsection (fd) below) of the Class A common stock Common Stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrantsmentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by multiplying multiplying: (1) the Conversion Price in effect immediately prior to the date of issuance of such record date rights or warrants by a fraction fraction, of which (2) the numerator shall be (A) the number of shares of Class A common stock Common Stock outstanding as on the date of the close issuance of business on such record date rights or warrants, immediately prior to such issuance, plus (B) the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price current market price (as determined pursuant to subsection (f) belowby multiplying such total number of shares by the exercise price of such rights or warrants and dividing the product so obtained by such current market price), and of which (3) the denominator shall be (A) the number of shares of Class A common stock Common Stock outstanding on the date of issuance of such record date rights or warrants, immediately prior to such issuance, plus (B) the number of additional shares of Class A common stock Common Stock which are so offered for subscription or purchase (or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall become effective immediately after such record date. For the purposes of this immediately, except as provide in subsection (b)e) below, after the number record date for the determination of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of holders entitled to receive such Class A common stock. The Company shall not issue any rights, options rights or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case Company TLGI shall distribute to substantially all holders of Class A common stock shares of capital stock of Company (other than Class A common stock)Common Stock, evidences of indebtedness, cashequity securities (including equity interests in TLGI's Subsidiaries) other than Common Stock, rightsor other assets (other than cash dividends paid out of surplus of TLGI), options or shall distribute to substantially all holders of Common Stock rights or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described those referred to in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in subsection (fd) below) of the Class A common stock Common Stock on the record date mentioned below less the then fair market value on such record date (as determined by the Board of Directors, whose determination shall shall, if made in good faith, be conclusive evidence of such fair market value and described in a board resolutionvalue) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed or of such subscription rights or warrants applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)Common Stock, and of which the denominator shall be such Current Market Price current market price per share of the Class A common stockCommon Stock. Such adjustment shall become effective immediately immediately, except as provided in subsection (e) below, after the record date for the determination of the holders of Class A common stock stockholders entitled to receive such distribution. Notwithstanding .
(d) For the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares purpose of Company's capital stock (other than rights, options or warrants referred to in subsection any computation under subsections (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection and (c) above, the current market price per share of Section 9.6 make proper provision so that Common Stock on any date shall be deemed to be the holder average of the Note who converts Last Sale Prices for the Note 30 consecutive Trading Days commencing 45 Trading Days before the date in question. (or e) In any portion thereof) case in which this Section 13.04 shall require that an adjustment be made immediately following a record date, TLGI may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), in which case TLGI shall, with respect to any Security converted after the such record date for and before such distribution and prior adjustment shall have become effective, (i) defer paying any cash payment pursuant to Section 13.03 or issuing to the expiration or redemption Holder of such Security the Rights shall be entitled to receive upon such conversion, in addition to the number of shares of Class A common Common Stock and other capital stock of TLGI issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder excess of the number of shares of Class A common Common Stock and other capital stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled TLGI issuable thereupon only on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness basis of the Conversion Price reduction contemplated by this subsection prior to adjustment, and (dii) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which not later than five Business Days after such adjustment is being made) applicable shall have become effective, pay to one share of Class A common stock (which shall be determined by dividing such Holder the sum of appropriate cash payment pursuant to Section 13.03 and issue to such Holder the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding additional shares of Class A common Common Stock and other capital stock within of TLGI issuable on such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Dateconversion.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (herein called the "Conversion Price Price") shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (i1) make or pay a dividend (or other distribution) in shares of Class A common stock to holders Common Stock on any class of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Capital Stock of the Company, (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii2) subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock or (iv3) combine or reclassify its outstanding shares of Class A common stock Common Stock into a smaller number of shares of Class A common stockshares, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of this Note any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which Common Stock that he would have owned immediately following such action had the Note such Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (h) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights, options or warrants to all holders of Class A common stock Common Stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) Common Stock at a price per share (or having a conversion price per share) less than the Current Market Price then current market price per share of the Common Stock (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrantsmentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by multiplying multiplying:
(i) the Conversion Price in effect immediately prior to the date of issuance of such record date rights or warrants by a fraction fraction, of which which
(ii) the numerator shall be (A) the number of shares of Class A common stock Common Stock outstanding as on the date of the close issuance of business on such record date rights, options or warrants, immediately prior to such issuance, plus (B) the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price current market price (as determined pursuant to subsection (f) belowby multiplying such total number of shares by the exercise price of such rights, options or warrants and dividing the product so obtained by such current market price), and of which which
(iii) the denominator shall be (A) the number of shares of Class A common stock Common Stock outstanding on the date of issuance of such record date rights, options or warrants, immediately prior to such issuance, plus (B) the number of additional shares of Class A common stock Common Stock which are so offered for subscription or purchase (or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall become effective immediately after such record date. For the purposes of this immediately, except as provided in subsection (b)h) below, after the number record date for the determination of shares of Class A common stock at holders entitled to receive such rights, options or warrants; provided, however, that if -------- ------- any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined issued by the Board Company as described in this subsection (b) are only exercisable upon the occurrence of Directorscertain triggering events relating to control and provided for in shareholder rights plans, then the Conversion Price will not be adjusted as provided in this subsection (b) until such triggering events occur.
(c) In case the Company or any subsidiary of the Company shall distribute to all holders of Class A common stock shares Common Stock, any of capital stock of Company (other than Class A common stock)its assets, evidences of indebtedness, cash, rights, options cash or warrants entitling the holders thereof to subscribe for other assets or purchase securities (shares of Capital Stock other than rightsCommon Stock (including securities, options but other than (x) dividends or warrants described distributions exclusively in cash or (y) any dividend or distribution for which an adjustment is required to be made in accordance with subsection (a) or (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market then current market price per share of the Common Stock (determined as provided in subsection (f) below) on the record date mentioned below less the then fair market value (as reasonably determined in good faith by the Board of Directors of the Company) of the portion of the assets so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (h) below, after the record date for the determination of stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the fair market value of the assets, evidences of indebtedness or other securities so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such fair market value by less than $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (c) and, to the extent applicable, the provisions of subsection (k) shall apply to such distribution.
(d) In case the Company or any subsidiary of the Company shall make any distribution consisting exclusively of cash (excluding any cash portion of distributions for which an adjustment is required to be made in accordance with (c) above, or cash distributed upon a merger or consolidation to which Section 13.6 applies) to all holders of Common Stock in an aggregate amount that, combined together with (i) all other such all-cash distributions made within the then preceding 12 months in respect of which no adjustment has been made and (ii) any cash and the fair market value of other consideration paid or payable in respect of any tender offer by the Company or any of its subsidiaries for Common Stock concluded within the preceding 12 months in respect of which no adjustment has been made, exceeds 15% of the Company's market capitalization (defined as being the product of the then current market price of the Common Stock (determined as provided in subsection (f) below) times the number of shares of Common Stock then outstanding) on the record date of such distribution, in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the then current market price per share of the Common Stock on such record date less the amount of the cash so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (h) below, after the record date for the determination of stockholders entitled to 77 receive such distribution. Notwithstanding the foregoing, in the event that the cash so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such amount of cash by less than $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (d).
(e) In case there shall be completed a tender or exchange offer made by the Company or any subsidiary of the Company for all or any portion of the Common Stock (any such tender or exchange offer being referred to as an "Offer") that involves an aggregate consideration having a fair market value as of the expiration of such Offer (the "Expiration Time") that, together with (i) any cash and the fair market value of any other consideration payable in respect of any other Offer, as of the expiration of such other Offer, expiring within the 12 months preceding the expiration of such Offer and in respect for which no Conversion Price adjustment pursuant to this subsection (e) has been made and (ii) the aggregate amount of any all-cash distributions referred to in subsection (d) of this Section 13.5 to all holders of Common Stock within the 12 months preceding the expiration of such Offer for which no conversion price adjustment pursuant to such subsection (d) has been made, exceeds 15% of the product of the then current market price per share (determined as provided in subsection (f) below) of the Class A common stock Common Stock on the record date mentioned below less Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time, the Conversion Price shall be reduced by multiplying such Conversion Price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be (i) the product of the then current market price per share (determined as provided in subsection (f) below) of the Common Stock on the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time minus (ii) the fair market value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the Offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted being referred to as the "Purchased Shares") and the denominator shall be the product of (i) such record date current market price per share on the Expiration Time times (as ii) such number of outstanding shares on the Expiration Time less the number of Purchased Shares, such reduction to become effective immedi- 78 ately prior to the opening of business on the day following the Expiration Time. For purposes of this subsection (e), the fair market value of any consideration with respect to an Offer shall be reasonably determined in good faith by the Board of Directors, whose determination shall be conclusive evidence Directors of such fair market value the Company and described in a board resolutionBoard Resolution.
(f) For the purpose of any computation under subsections (b), (c), (d) and (e) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the portion Last Sale Prices of a share of Common Stock for the five consecutive Trading Days selected by the Company commencing not more than 20 Trading Days before, and ending not later than, the earlier of the evidences date in question and the date before the "`ex' date," with respect to the issuance, distribution or Offer requiring such computation. If on any such Trading Day the Common Stock is not quoted by any organization referred to in the definition of indebtednessLast Sale Price in Section 13.3 hereof, the fair value of the Common Stock on such day, as reasonably determined in good faith by the Board of Directors of the Company, shall be used. For purposes of this paragraph, the term "`ex' date," when used with respect to any issuance, distribution or payments with respect to an Offer, means the first date on which the Common Stock trades regular way on the New York Stock Exchange (or if not listed or admitted to trading thereon, then on the principal national securities exchange on which the Common Stock is listed or admitted to trading) without the right to receive such issuance, distribution or Offer.
(g) In addition the foregoing adjustments in subsections (a), (b), (c), (d) and (e) above, the Company will be permitted to make such reductions in the Conversion Price as it considers to be advisable in order that any event treated for Federal income tax purposes as a dividend of stock or stock rights will not be taxable to the holders of the shares of Common Stock.
(h) In any case in which this Section 13.5 shall require that an adjustment (including by reason of the last sentence of subsection (a) or (c) above) be made immediately following a record date, the Company may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), in which case the Company shall, with respect to any Security converted after such record date and on and before such adjustment shall have become effective (i) defer paying any Cash payment pursuant to Section 13.3 hereof or issuing to the Holder of such Security the number of shares of Common Stock and other capital stock, cash, rights, options, warrants stock of the Company (or other assets so distributed applicable to one share of Class A common stock (determined on the basis or securities) issuable upon such conversion in excess of the number of shares of Common Stock and other Capital Stock of the Class A common stock outstanding Company issuable thereupon only on the record date)basis of the Conversion Price prior to adjustment, and of which the denominator shall be (ii) not later than five Business Days after such Current Market Price of the Class A common stock. Such adjustment shall have become effective immediately after effective, pay to such Holder the record date for appropriate Cash payment pursuant to Section 13.3 hereof and issue to such Holder the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Common Stock and other Capital Stock of the Company issuable on such conversion.
(i) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1.0% of the Conversion Price; provided, that any adjustments which by reason of this -------- subsection (i) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article XIII shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(j) Whenever the Conversion Price is adjusted as herein provided, the Company shall promptly (i) file with the Trustee and each conversion agent an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment, and (ii) mail or cause to be mailed a notice of such adjustment to each holder of Securities at his address as the same appears on the registry books of the Company's capital stock .
(k) In the event that the Company distributes rights or warrants (other than rights, options or warrants those referred to in subsection (b) above) ("Rights") pro rata to all holders of Class A common stockCommon Stock, so long as any such rights or warrants have not expired or been redeemed by the Company, the Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 shall make proper provision so that the holder Holder of the any Note who converts the Note (or any portion thereof) after the record date surrendered for such distribution and prior to the expiration or redemption of the Rights shall conversion will be entitled to receive upon such conversion, in addition to the shares of Class A common stock Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights rights or warrants to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights rights or warrants of separate certificates evidencing such Rights rights or warrants (the "Distribution Date"), the same number of Rights rights or warrants to which a holder of a number of shares of Class A common stock Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; rights or warrants, and (ii) if such conversion occurs after the such Distribution Date, the same number of Rights rights or warrants to which a holder of the number of shares of Class A common stock Common Stock into which the principal amount of the such Note so converted was convertible immediately prior to the such Distribution Date would have been entitled on the such Distribution Date in accordance with the terms and provisions of and applicable to the Rightsrights or warrants.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall at any time or from time to time (i) pay a dividend in or make a distribution on the outstanding shares of Class A common stock to holders of Class A common Common Stock in capital stock (which, for purposes of this SECTION 1303 shall include, without limitation, any options, warrants or any event treated as such for U.S. Federal income tax purposes)other rights to acquire capital stock) of the Company, (ii) make a distribution in subdivide the outstanding shares of Class A common stock to holders Common Stock into a larger number of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)shares, (iii) subdivide its combine the outstanding shares of Class A common stock into a greater number of shares of Class A common stock or (iv) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares, (iv) issue any shares of Class A common stockits capital stock in a reclassification of the Common Stock or (v) pay a dividend or make a distribution on the outstanding shares of Common Stock in shares of its capital stock pursuant to a shareholder rights plan, "poison pill" or similar arrangement, then, and in each such case, the conversion privilege and the Conversion Price in effect immediately prior to such action event shall be adjusted so that the holder Holder of this Note any Bond thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which he Common Stock or other securities of the Company that such Holder would have owned immediately following or would have been entitled to receive upon or by reason of any of the events described above, had such action had the Note Bond been converted immediately prior theretoto the happening of such event. Any Such adjustment shall be made successively whenever any event described above shall occur. An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date retroactively (A) in the case of a any such dividend or distribution, immediately after the close of business on the record date for the determination of holders of Common Stock entitled to receive such dividend or distribution and shall become effective immediately after the effective date or (B) in the case of a subdivision any such subdivision, combination or combinationreclassification, at the close of business on the day upon which such corporate action becomes effective.
(b) In case the Company shall at any time or from time to time issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase sell shares of Class A common stock Common Stock (or securities convertible into Class A common stockor exchangeable for shares of Common Stock, or any options, warrants or other rights to acquire shares of Common Stock) to all holders of its Common Stock at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on Common Stock then in effect at the record date for determining referred to in the holders immediately following paragraph (treating the price per share of any security convertible or exchangeable or exercisable into Common Stock as equal to (x) the sum of the Class A common stock entitled price for such security convertible, exchangeable or exercisable into Common Stock plus any additional consideration payable (without regard to receive any anti-dilution adjustments) upon the conversion, exchange or exercise of such rightssecurity into Common Stock divided by (y) the number of shares of Common Stock initially underlying such convertible, options exchangeable or warrantsexercisable security), other than issuances or sales of Common Stock pursuant to any employee benefit plan, then, and in each such case, the Conversion Price then in effect shall be adjusted so that the same shall equal the price determined by multiplying dividing the Conversion Price in effect on the day immediately prior to such record date date, by a fraction (A) the numerator of which the numerator shall be the sum of the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock Common Stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase Common Stock issued (or the maximum number into which such convertible or exchangeable securities initially may convert or exchange or for which such options, warrants or other rights initially may be exercised) and (B) the convertible securities so offered are convertible). Such adjustments denominator of which shall become effective immediately after such record date. For be the purposes sum of this subsection (b), the number of shares of Class A common stock at any time Common Stock outstanding shall not include shares held in on such record date plus the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions number of shares of Common Stock that the aggregate consideration for the total number of such Class A common stockadditional shares of Common Stock so issued (or into which such convertible or exchangeable securities may convert or exchange or for which such options, warrants or other rights may be exercised plus the aggregate amount of any additional consideration initially payable upon conversion, exchange or exercise of such security) would purchase at the Current Market Price per share of Common Stock on such record date. The If the Company shall not issue any or sell shares of Common Stock or rights, options options, warrants or convertible or exchangeable securities for a consideration consisting, in whole or in part, of property other than cash, the amount of such consideration shall be determined in good faith by the Board of Directors whose determination shall be conclusive and evidenced by a Board Resolution. Such adjustment shall be made whenever such shares, securities, options, warrants in respect or other rights are issued, and shall become effective retroactively immediately after the close of business on the record date for the determination of stockholders entitled to receive such shares, securities, options, warrants or other rights; provided, that the determination as to whether an adjustment is required to be made pursuant to this SECTION 1303(B) shall only be made upon the issuance of such shares or such convertible or exchangeable securities, options, warrants or other rights, and not upon the issuance of Class A common stock held the security into which such convertible or exchangeable security converts or exchanges, or the security underlying such option, warrant or other right. Notwithstanding the foregoing, in the treasury event of Company. In determining whether any rights, options such issuance or warrants entitle the holders to subscribe for or purchase shares sale of Class A common stock Common Stock at a price less than the Current Market Price, no such adjustment under this SECTION 1303(B) need be made to the Conversion Price unless such adjustment would require an increase or decrease of at least 1% of the Conversion Price then in effect. Any lesser adjustment shall be carried forward and in determining shall be made at the aggregate offering price time of and together with the next subsequent adjustment that, together with any adjustment or adjustments so carried forward, shall amount to an increase or decrease of at least 1% of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of DirectorsConversion Price.
(c) In case If the Company shall distribute to all holders of Class A common stock shares of capital stock of Company Common Stock (other than Class A common stock), evidences of indebtedness, cash, rights, options i) any rights or warrants entitling the holders thereof to subscribe for or purchase securities any security of the Company (other than rights, options or warrants described those referred to in subsection paragraph (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection any evidence of indebtedness or other securities of the Company (aother than capital stock) above and or (iii) assets (other than cash) having an aggregate fair market value (as determined by the Board of Directors as provided below) that, together with all other such distributions in connection with for which an adjustment pursuant to this paragraph (c) has not been made within 12 months preceding the consolidationrecord date fixed for determination of holders entitled to receive such distribution, merger or transfer exceeds 10% of assets covered the product of the number of shares of Common Stock outstanding on such record date multiplied by Section 9.11)the Current Market Price per share of the Common Stock on such record date, then in each such case the Conversion Price shall be adjusted so that the same Conversion Price shall thereafter equal the price determined by multiplying the Conversion Price in effect on the day immediately prior to the preceding such record date of such distribution by a fraction fraction, the numerator of which the numerator shall be the such Current Market Price (determined as provided in subsection (f) below) of minus the Class A common stock on the record date mentioned below less the fair market value on such record date per share Fair Market Value (as determined by the in a Board of DirectorsResolution, whose determination which shall be conclusive evidence of such fair market value and described in a board resolutionFair Market Value) of such rights, warrants, evidences of indebtedness or other securities or assets, as the portion case may be, so distributed to holders of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)Common Stock, and the denominator of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the RightsPrice.
(d) In case Company shall, by dividend or otherwiseIf, at any time make time, as a distribution to all holders result of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment made pursuant to subsection paragraphs (a), (b) or (c) of this Section) in an aggregate amount thatabove, together with the sum of (x) the aggregate amount Holder of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed Bond thereafter surrendered for determining the stockholders conversion shall become entitled to receive any shares of capital stock of the Company other than shares of Common Stock, the number of such distribution shares so receivable upon conversion of any Bond shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions contained in such paragraphs (the "Distribution Record Date"a), (b) and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record DateCommon Stock.
(e) In case If the Company shall take a tender offer record of the holders of its Common Stock for the purpose of entitling them to receive a dividend or other negotiated transaction made by Company distribution, and shall thereafter and before the distribution to stockholders thereof legally abandon its plan to pay or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of deliver such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwisedistribution, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which then thereafter no adjustment in the Conversion Price pursuant then in effect shall be required by reason of the taking of such record.
(f) Upon any increase or decrease in the Conversion Price, then, and in each such case, the Company promptly shall deliver to subsection the Trustee and each Holder at least ten (c10) Business Days prior to effecting any of the foregoing transactions an Officers' Certificate, setting forth in reasonable detail the event requiring the adjustment and the method by which such adjustment was calculated and specifying the increased or decreased Conversion Price then in effect following such adjustment.
(g) Notwithstanding any other provision of this SECTION 1303, no adjustment to the Conversion Price shall reduce the Conversion Price below the then par value per share of the Common Stock and any such purported adjustment shall instead reduce the Conversion Price to such par value. The Company hereby covenants not to take any action (i) to increase the par value per share of the Common Stock or (dii) of this Section that would or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments does result in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant that, if made without giving effect to subsection (c) or (d) of this Section or this subsection (e) has been madethe previous sentence, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), would cause the Conversion Price shall to be reduced so that less than the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness par value per share of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase DateCommon Stock.
Appears in 1 contract
Sources: Indenture (Polyphase Corp)
Adjustment of Conversion Price. The conversion price as stated in paragraph 6 of the Securities (the “Conversion Price Price”) shall be subject to adjustment adjusted from time to time by the Company as follows:
(a) In case the Company shall (i) pay a dividend on its Class B Common Stock in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)B Common Stock, (ii) make a distribution on its Class B Common Stock in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)B Common Stock, (iii) subdivide its outstanding shares of Class A common stock B Common Stock into a greater number of shares of Class A common stock shares, or (iv) combine its outstanding shares of Class A common stock B Common Stock into a smaller number of shares of Class A common stockshares, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of this Note any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Class A common stock B Common Stock which he it would have owned immediately following had such action had the Note Security been converted immediately prior theretoto the record date of such event or the happening of such event (assuming such Security were convertible solely into shares of Class B Common Stock, based on the relevant Conversion Price, rather than Cash or Cash and Class B Common Stock as set forth in Section 4.05). Any An adjustment made pursuant to this subsection (a) shall become effective immediately after on the record “ex” date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. If any dividend or distribution of the type described in this Section 4.06(a) is declared but not actually paid or made, the Conversion Price shall again be adjusted to the Conversion Price that would have been in effect if such dividend or distribution had not been declared.
(b) In case the Company shall issue rights, options rights or warrants to all or substantially all holders of its Class A common stock B Common Stock entitling them for a period of not more than 60 days to subscribe for or purchase shares of Class A common stock B Common Stock (or securities convertible into Class A common stockB Common Stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock B Common Stock on the record Trading Day immediately preceding the “ex” date for determining the holders of the Class A common stock entitled to receive such rights, options or warrantsissuance, the Conversion Price shall be adjusted so that the same Conversion Price on the “ex” date shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record “ex” date by a fraction of which the numerator shall be the number of shares of Class A common stock B Common Stock outstanding as of the close of business on immediately prior to such record “ex” date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock B Common Stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered, which shall be determined by multiplying the number of shares of Class B Common Stock issuable upon conversion of such convertible securities by the conversion price per share of Class B Common Stock pursuant to the terms of such convertible securities) would purchase at such the Current Market Price (as determined pursuant to subsection (f) below)per share of Class B Common Stock on the Trading Day immediately preceding such “ex” date, and of which the denominator shall be the number of shares of Class A common stock B Common Stock outstanding on such record date plus the number of additional shares of Class A common stock so B Common Stock offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments adjustment shall be made successively whenever any such rights or warrants are issued and shall become effective immediately after on such record “ex” date. For If at the purposes end of this subsection the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised or distributed, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon the number of additional shares of Class B Common Stock actually issued (b), or the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury B Common Stock issuable upon conversion of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directorsconvertible securities actually issued).
(c) In case the Company shall distribute to all or substantially all holders of its Class A common stock B Common Stock any shares of capital stock Capital Stock of the Company (other than Class A common stockB Common Stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) Indebtedness or other non-cash assets (including securities of Persons any person other than the Company but excluding (i1) dividends or distributions paid exclusively in cash except as described Cash referred to in subsection (d) below, of this Section 4.06 or (ii2) dividends and or distributions described referred to in subsection (a) above of this Section 4.06), or shall distribute to all or substantially all holders of its Class B Common Stock rights or warrants to subscribe for or purchase any of its securities (excluding those rights and warrants referred to in subsection (iiib) distributions in connection with of this Section 4.06 and also excluding the consolidation, merger distribution of rights to all or transfer substantially all holders of assets covered by Section 9.11Class B Common Stock pursuant to the adoption of a stockholder rights plan or the detachment of such rights under the terms of such stockholder rights plan), then in each such case the Conversion Price shall be adjusted so that the same Conversion Price on the “ex” date for such distribution shall equal the price determined by multiplying the current Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) per share of the Class A common stock B Common Stock on the record Trading Day immediately preceding such “ex” date mentioned below less the fair market value on such record date Trading Day (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolutionwhich shall be evidenced by an Officers’ Certificate delivered to the Trustee and the Conversion Agent) of the portion of the Capital Stock, evidences of indebtedness, shares of capital stock, cash, rights, options, warrants Indebtedness or other non-cash assets so distributed or of such rights or warrants applicable to one share of Class A common stock B Common Stock (determined on the basis of the number of shares of the Class A common stock B Common Stock outstanding on the record Trading Day immediately preceding such “ex” date), and of which the denominator shall be such the Current Market Price per share of the Class A common stockB Common Stock on the Trading Day immediately preceding such “ex” date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of the holders of Class A common stock shareholders entitled to receive such distribution. Notwithstanding In the foregoingevent the then fair market value (as so determined) of the portion of the Capital Stock, evidences of Indebtedness or other non-cash assets so distributed or of such rights or warrants applicable to one share of Class B Common Stock is equal to or greater than the Current Market Price per share of the Class B Common Stock on the Trading Day immediately preceding such “ex” date, in case Company lieu of the foregoing adjustment, adequate provision shall distribute rightsbe made so that each holder of a Security shall have the right to receive upon conversion the amount of Capital Stock, options evidences of Indebtedness or other non-cash assets so distributed or of such rights or warrants such holder would have received had such holder converted each Security immediately prior to the record date for such distribution. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value of any distribution for purposes of this Section 4.06(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Class B Common Stock. In the event that the Company implements a preferred shares rights plan (“Rights Plan”), upon conversion of the Securities into Class B Common Stock, to the extent that the Rights Plan has been implemented and is still in effect upon such conversion, the Holders of Securities will receive, in addition to the Class B Common Stock, the rights described therein (whether or not the rights have separated from the Class B Common Stock at the time of conversion), subject to the limitations set forth in the Rights Plan. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(c). Rights or warrants distributed by the Company to all or substantially all holders of Class B Common Stock entitling the holders thereof to subscribe for additional or purchase shares of the Company's capital stock ’s Capital Stock (other than rightseither initially or under certain circumstances), options which rights or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of Class B Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Class B Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.06 (and no adjustment to the Conversion Price under this Section 4.06 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Price shall be made under this Section 4.06(c). If any such right or warrant, including any such existing rights or warrants referred distributed prior to the date of this First Supplemental Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of Indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in subsection the event of any distribution (bor deemed distribution) aboveof rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Price under this Section 4.06 was made, ("Rights"1) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Price 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 Class B Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder B Common Stock as of the Note who converts date of such redemption or repurchase, and (2) in the Note (case of such rights or warrants which shall have expired or been terminated without exercise by any portion holders thereof) after , the record date for such distribution and prior to the expiration or redemption of the Rights Conversion Price shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined readjusted as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms rights and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have warrants had not been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rightsissued.
(d) In case the Company shall, by dividend or otherwise, at any time make distribute (a distribution “Triggering Distribution”) to all or substantially all holders of its Class A common stock exclusively in cash B Common Stock Cash dividends and other Cash distributions (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of other than (x) distributions described in Section 4.06(e) below, (y) any dividend or distribution in connection with liquidation, dissolution or winding up or (z) any regular quarterly Cash dividend on Class B Common Stock to the extent that the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price Cash dividend per share (determined as provided in subsection (f) of this Section) of the Class A common stock on B Common Stock does not exceed the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date Dividend Threshold Amount (excluding shares held in the treasury of Companysubject to adjustment)), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect on the Trading Day immediately prior preceding the “ex” date with respect to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) such Cash dividend or distribution by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum B Common Stock as of the aggregate amount of cash and Trading Day immediately preceding the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable “ex” date with respect to outstanding shares of Class A common stock within such 12 months (includingthe dividend or distribution less the Dividend Adjustment Amount, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on B Common Stock as of the Distribution Record Date, such reduction Trading Day immediately preceding the “ex” date with respect to the dividend or distribution. Such decrease shall become effective immediately prior to the opening of business on the day following “ex” date for such dividend or distribution; provided, however, that, in the event the portion of the Triggering Distribution Record Dateapplicable to one share of Class B Common Stock is equal to or greater than the Current Market Price on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion the amount of Cash such Holder would have received had such Holder converted each Security immediately prior to the record date for such dividend or distribution. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared.
(e) In case a any tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within B Common Stock shall expire and such tender offer (as amended upon the 12 months preceding expiration thereof) shall involve the Purchase Date payment of aggregate consideration in an amount (determined as the sum of the aggregate amount of Cash consideration and in respect the aggregate fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence thereof and which no adjustment in shall be evidenced by an Officers’ Certificate delivered to the Trustee and the Conversion Price pursuant to subsection (c) or (dAgent thereof) of this Section or this subsection (eany other consideration) has been made, that exceeds 12 1/2% of the product of an amount equal to the Current Market Price per share (determined of Class B Common Stock as provided in subsection (f) of this Section) of the Class A common stock last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Purchase Expiration Date multiplied by is hereinafter called the number “Expiration Time”), then, immediately prior to the opening of shares of Class A common stock outstanding business on the Purchase Date (including any tendered shares but excluding any shares held in day after the treasury of Company)Expiration Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such the Conversion Price in effect immediately prior to 5:00 p.m. (New York City time) on the effectiveness of the Conversion Price reduction contemplated by this subsection (e) Expiration Date by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) product of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock B Common Stock outstanding (including tendered shares but excluding any shares held in the treasury of the Company) immediately before the Expiration Time multiplied by the Current Market Price per share of the Class B Common Stock on the Purchase Date) Trading Day next succeeding the Expiration Date and the denominator shall be the sum of (x) the aggregate consideration (determined as aforesaid) payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (y) the product of the number of shares of Class B Common Stock outstanding (less any Purchased Shares and excluding any shares held in the treasury of the Company) immediately after the Expiration Time and the Current Market Price per share (determined as provided of Class B Common Stock on the Trading Day next succeeding the Expiration Date. In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in subsection (f) effect based upon the number of shares actually purchased. If the application of this SectionSection 4.06(e) to any tender offer would result in an increase in the Conversion Price, no adjustment shall be made for such tender offer under this Section 4.06(e). For purposes of this Section 4.06(e), the Class A common stock on the Purchase Dateterm “tender offer” shall mean and include both tender offers and exchange offers, such reduction all references to become effective immediately prior to the opening “purchases” of business on the day following the Purchase Date.shares in tender offers (and all similar
Appears in 1 contract
Adjustment of Conversion Price. (a) The Conversion Price shall be subject to adjustment from time to time as follows:
(ai) In case the Company shall at any time or from time to time (iA) pay a dividend (or other distribution) payable in shares of Class A common stock Common Stock on any class of Capital Stock (which, for purposes of this Section 9.05 shall include, without limitation, any dividends or distributions in the form of options, warrants or other rights to holders acquire Capital Stock) of Class A common stock the Company (or other than any event treated as such for U.S. Federal income tax purposes), (ii) make a distribution in issuance of shares of Class A common stock to holders Common Stock in connection with the conversion of Class A common stock Securities); (or any event treated as such for U.S. Federal income tax purposes), (iiiB) subdivide its the outstanding shares of Class A common stock Common Stock into a greater larger number of shares of Class A common stock or shares; (ivC) combine its the outstanding shares of Class A common stock Common Stock into a smaller number of shares; (D) issue any shares of Class A common stockits Capital Stock in a reclassification of the Common Stock; or (E) pay a dividend or make a distribution to all holders of shares of Common Stock (other than a dividend or distribution subject to Section 9.05(a)(ii)) pursuant to a stockholder rights plan, “poison pill” or similar arrangement, then in each such case, the Conversion Price in effect immediately prior to such action event shall be adjusted (and any other appropriate actions shall be taken by the Company) so that the holder Holder of this Note any Securities thereafter surrendered [[NYCORP:2552346v6:4259b:11/07/05--10:59 p]] for conversion shall be entitled to receive the number of shares of Class A common stock which he would have owned immediately following such action had the Note been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case Company shall issue rightscash and, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b)if applicable, the number of shares of Class A common stock Common Stock that such Holder would have owned or would have been entitled to receive upon or by reason of any of the events described above, had such Securities been converted immediately prior to the occurrence of such event. For the purposes of calculating the Conversion Price adjustment pursuant to this Section 9.05(a)(i), Holders of a Security shall be treated as if they had the right to convert the Security solely into Common Stock at the then applicable Conversion Price. An adjustment made pursuant to this Section 9.05(a)(i) shall become effective retroactively (x) in the case of any such dividend or distribution, to the day immediately following the close of business on the record date for the determination of holders of Common Stock entitled to receive such dividend or distribution or (y) in the case of any such subdivision, combination or reclassification, to the close of business on the day upon which such corporate action becomes effective.
(ii) In case the Company shall at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not or from time to time issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, Common Stock rights, options or warrants entitling the holders thereof to subscribe for or purchase securities purchase, for a period expiring not more than 60 days after the date of distribution, shares of Common Stock at a price per share less than the average of the Closing Sale Prices of Common Stock for the ten Trading Days immediately preceding the date such distribution was first publicly announced (other than treating the price per share of any security convertible or exchangeable or exercisable into Common Stock as equal to (A) the sum of the price paid to acquire such security convertible, exchangeable or exercisable into Common Stock plus any additional consideration payable (without regard to any anti-dilution adjustments) upon the conversion, exchange or exercise of such security into Common Stock divided by (B) the number of shares of Common Stock into which such convertible, exchangeable or exercisable security is initially convertible, exchangeable or exercisable), then, and in each such case, the Conversion Price then in effect shall be adjusted by dividing the Conversion Price in effect on the day immediately prior to the record date of such issuance by a fraction (y) the numerator of which shall be the sum of the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock issued or to be issued upon or as a result of the issuance of such rights, options or warrants described in subsection (b) above) or the maximum number into or for which such convertible or exchangeable securities initially may convert or exchange or for which such options, warrants or other assets (including securities of Persons other than Company but excluding (irights initially may be exercised) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iiiz) distributions the denominator of which shall be the sum of the number of shares of Common Stock outstanding on such record date plus the number of shares of Common Stock which the aggregate consideration for the total number of such additional shares of Common Stock so issued (or into or for which such convertible or exchangeable securities may convert or exchange or for which such options, warrants or other rights may be exercised plus the aggregate amount of any additional consideration initially payable upon the conversion, exchange or exercise of such security) would purchase at such average of the Closing Sale Prices of the Common Stock over such ten Trading Days, provided that no adjustment will be made if Holders of the Securities are entitled to participate in connection with [[NYCORP:2552346v6:4259b:11/07/05--10:59 p]] the consolidationdistribution on substantially the same terms as holders of the Common Stock as if such Holders had converted their Securities solely into Common Stock immediately prior to such distribution at the then applicable Conversion Price. Such adjustments shall be made successively whenever any such rights, merger warrants or transfer options are issued, and shall become effective immediately after such record date. If at the end of assets covered by Section 9.11)the period during which such rights, then in each such case warrants or options are exercisable not all rights, warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or convertible securities offered).
(iii) If the Company shall at any time make a distribution, by dividend or otherwise, to all holders of shares of its Common Stock consisting exclusively of cash (excluding any cash portion of distributions referred to in clause (E) of paragraph (i) above and cash distributed upon a merger or consolidation to which Section 9.11 below applies) in an amount per share of Common Stock that, when combined with the per share amounts of all other all-cash distributions to all holders of shares of its Common Stock made within the 90-day period ending on the record date for the distribution giving rise to an adjustment pursuant to this Section 9.05(a)(iii), exceeds $0.065 per share of Common Stock (the “Distribution Threshold Amount”), then the Conversion Price will be adjusted by multiplying:
(1) the Conversion Price in effect immediately prior to the close of business on the record date fixed for the determination of holders of Common Stock entitled to receive such distribution by
(2) a fraction, the numerator of which will be the Market Value on the fourth trading day on the NYSE prior to such record date minus the amount of cash per share of Common Stock so distributed in excess of the Dividend Threshold Amount for which an adjustment has not otherwise been made pursuant to this Section 9.05(a)(iii) and the denominator of which will be the Market Value on the fourth trading day on the NYSE prior to such record date. Subject to Section 9.06(b), such adjustment shall become effective immediately after the record date for the determination of holders of Common Stock entitled to receive the distribution giving rise to an adjustment pursuant to this Section 9.05(a)(iii). If an adjustment is required to be made under this Section 9.05 as a result of a cash dividend in any quarterly period that exceeds the Distribution Threshold Amount, the adjustment shall be based upon the amount by which the distribution exceeds the Distribution Threshold Amount. If an adjustment is otherwise required to be made under this Section 9.05, the adjustment shall be based upon the full amount of the distribution. The [[NYCORP:2552346v6:4259b:11/07/05--10:59 p]] Distribution Threshold Amount is subject to adjustment under the same circumstances under which the Conversion Price is subject to adjustment pursuant to Section 9.05(a)(i) or Section 9.05(a)(ii). Notwithstanding the foregoing, in no event will the Conversion Price be less than $30.05, subject to adjustment under the same circumstances under which the Conversion Price is subject to adjustment pursuant to Section 9.05(a)(i), (ii), (iv) and (v).
(iv) If the Company shall equal at any time or from time to time on the price determined record date of such distribution: (A) complete a tender or exchange offer by multiplying the Company or any of its subsidiaries for shares of Common Stock that involves an aggregate consideration that, together with (1) any cash and other consideration payable in a tender or exchange offer by the Company or any of its subsidiaries for shares of Common Stock expiring within the then-preceding 12 months in respect of which no adjustment pursuant to this Section 9.05 has been made and (2) the aggregate amount of any such all-cash distributions referred to in paragraph (iii) above to all holders of shares of Common Stock within the then-preceding 12 months in respect of which no adjustments have been made, exceeds 15% of the Company’s market capitalization (defined as the product of the Market Value for the period ending on the record date of such distribution times the number of shares of Common Stock outstanding on such record date) on the expiration of such tender offer; or (B) make a distribution to all holders of its Common Stock consisting of evidences of indebtedness, shares of its Capital Stock other than Common Stock or assets (including securities, but excluding those dividends, rights, options, warrants and distributions referred to in paragraphs (i), (ii), (iii) above or this (iv)), then, and in each such case, the Conversion Price then in effect shall be adjusted by dividing the Conversion Price in effect immediately prior to the date of such distribution or completion of such tender or exchange offer, as the case may be, by a fraction (x) the numerator of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of Value for the Class A common stock period ending on the record date mentioned below referred to below, or, if such adjustment is made upon the completion of a tender or exchange offer, on the payment date for such offer, and (y) the denominator of which shall be such Market Value less the then fair market value on such record date (as determined by the Board of DirectorsDirectors of the Company) of the portion of the cash, evidences of indebtedness, securities or other assets so distributed or paid in such tender or exchange offer, applicable to one share of Common Stock (but such denominator shall not be less than one); provided, however, that no adjustment shall be made with respect to any distribution of rights to purchase securities of the Company if Holders of the Securities are entitled to participate in such distribution on substantially the same terms as holders of the Common Stock as if such Holders had converted their Securities solely into Common Stock immediately prior to such distribution at the then applicable Conversion Price. Such adjustment shall be made whenever any such distribution is made or tender or exchange offer is completed, as the case may be, and shall become effective retroactively to a date immediately following the close of business on the record date for the determination of stockholders entitled to receive such distribution. [[NYCORP:2552346v6:4259b:11/07/05--10:59 p]]
(v) In the case the Company at any time or from time to time shall take any action affecting its Common Stock (it being understood that the issuance or sale of shares of Common Stock (or securities convertible into or exchangeable for shares of Common Stock, or any options, warrants or other rights to acquire shares of Common Stock) to any Person at a price per share less than the Conversion Price then in effect shall not be deemed such an action), other than an action described in any of Section 9.05(a)(i) through Section 9.05(a)(iv), inclusive, or Section 9.11, then the Conversion Price shall be adjusted in such manner and at such time as the Board of Directors of the Company in good faith determines to be equitable in the circumstances (such determination to be evidenced in a resolution, a certified copy of which shall be mailed to the Holders of the Securities).
(i) If a Holder elects to convert its Securities in connection with a specified corporate transaction pursuant to Section 9.01(a)(v)(B) that occurs on or prior to November 15, 2015, and that constitutes a Fundamental Change (other than relating to the composition of our Board of Directors as described in clause (iv) of the definition of Fundamental Change in Section 1.01), and 10% or more of the fair market value of the consideration for the Common Stock (as determined by the Board of Directors of the Company, whose determination shall be conclusive evidence of such fair market value value) in the corporate transaction consists of (A) cash (not including cash payments for fractional shares and described cash payments pursuant to dissenters’ appraisal rights), (B) other property or (C) securities that are not traded or scheduled to be traded immediately following such transaction on a U.S. national securities exchange or the Nasdaq National Market (a “Non-Stock Change in a board resolution) Control”), then the Conversion Price of the portion Securities being converted by such Holder at that time shall be decreased, which will increase the Conversion Rate by a number of shares (the “Additional Shares”) determined in the manner set forth below.
(ii) The increase in the Conversion Rate expressed as a number of Additional Shares per $1,000 principal amount of Securities shall be determined by the Company by reference to the table attached as Schedule A hereto, based on the date the corporate transaction constituting a Non-Stock Change in Control becomes effective (the “Effective Date”) and the share price paid per share of Common Stock in such corporate transaction (the “Share Price”); provided that (x) if holders of the evidences Common Stock receive only cash in such corporate transaction, the Share Price shall be the cash amount paid per share and (y) in all other cases, the Share Price shall be the average of indebtedness, shares the Closing Sale Prices of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined the Common Stock on the basis five Trading Days prior to but not including the Effective Date of the Non-Stock Change in Control.
(iii) The exact Share Prices and Effective Dates may not be set forth in the table attached as Schedule A hereto, in which case:
(A) if the Share Price is between two Share Price amounts in the table attached as Schedule A hereto, or the Effective Date is between two [[NYCORP:2552346v6:4259b:11/07/05--10:59 p]] dates in the table, the Company shall determine the number of shares Additional Shares by a straight-line interpolation between the numbers of Additional Shares set forth for the higher and lower Share Price amounts and/or the two dates, as applicable, based on a 365-day year;
(B) if the Share Price is in excess of $125.00 per share (subject to adjustment in the same manner as the Conversion Price as set forth in this Indenture), no increase in the Conversion Rate shall be made; and
(C) if the Share Price is less than $30.05 per share (subject to adjustment in the same manner as the Conversion Price as set forth in this Indenture), no increase in the Conversion Rate shall be made.
(iv) The Share Prices set forth in the first row of the Class table (i.e., column headers) in Schedule A common stock outstanding hereto shall be adjusted as of any date on the record date), and of which the denominator shall be such Current Market Conversion Price of the Class A common stockSecurities is adjusted pursuant to this Indenture. Such The adjusted Share Prices shall equal the Share Prices applicable immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the Conversion Price immediately prior to the adjustment giving rise to the Share Price adjustment and the denominator of which is the Conversion Price as so adjusted. The number of Additional Shares shall become effective immediately after be adjusted in the record date for same manner as the determination of the holders of Class A common stock entitled to receive such distribution. Conversion Price as set forth in this Indenture.
(v) Notwithstanding the foregoing, in case Company no event shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the Rate exceed 33.2779 per $1,000 principal amount of the Note so converted was convertible immediately prior Securities (subject to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), same manner as the Conversion Price shall be reduced so that as set forth in this Indenture)
(vi) For the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness avoidance of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitationdoubt, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.provid
Appears in 1 contract
Sources: Indenture (Chesapeake Energy Corp)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case Company the Issuer shall (i1) make or pay a dividend (or other distribution) in shares of Class A common stock to holders Common Stock on any class of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Capital Stock of the Issuer, (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii2) subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock or (iv3) combine or reclassify its outstanding shares of Class A common stock Common Stock into a smaller number of shares of Class A common stockshares, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of this Note any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which Common Stock that he would have owned immediately following such action had the Note such Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (i) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case Company the Issuer shall issue rights, options or warrants to all or substantially all holders of Class A common stock Common Stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) Common Stock at a price per share (or having a conversion price per share) less than the Current Market Price then current market price per share of the Common Stock (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrantsmentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by multiplying multiplying:
(i) the Conversion Price in effect immediately prior to the date of issuance of such record date rights or warrants by a fraction fraction, of which which
(ii) the numerator shall be (A) the number of shares of Class A common stock Common Stock outstanding as on the date of the close issuance of business on such record date rights, options or warrants, immediately prior to such issuance, plus (B) the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price current market price (as determined pursuant to subsection (f) belowby multiplying such total number of shares by the exercise price of such rights, options or warrants and dividing the product so obtained by such current market price), and of which which
(iii) the denominator shall be (A) the number of shares of Class A common stock Common Stock outstanding on the date of issuance of such record date rights, options or warrants, immediately prior to such issuance, plus (B) the number of additional shares of Class A common stock Common Stock which are so offered for subscription or purchase (or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall become effective immediately after such record date. For the purposes of this immediately, except as provided in subsection (b)i) below, after the number record date for the determination of shares of Class A common stock at holders entitled to receive such rights, options or warrants; provided, however, that if any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined issued by the Board Issuer as described in this subsection (b) are only exercisable upon the occurrence of Directorscertain triggering events relating to control and provided for in shareholder rights plans, then the Conversion Price will not be adjusted as provided in this subsection (b) until such triggering events occur.
(c) In case Company the Issuer or any Subsidiary of the Issuer shall distribute to all or substantially all holders of Class A common stock shares Common Stock, any of capital stock of Company (other than Class A common stock)its assets, evidences of indebtedness, cash, rights, options cash or warrants entitling the holders thereof to subscribe for other assets or purchase securities (shares of Capital Stock other than rightsCommon Stock (including securities, options but other than (x) dividends or warrants described distributions exclusively in cash or (y) any dividend or distribution for which an adjustment is required to be made in accordance with subsection (a) or (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market then current market price per share of the Common Stock (determined as provided in subsection (f) below) on the record date mentioned below less the then fair market value (as determined by the Board of Directors of the Issuer whose determination shall be conclusive) of the portion of the assets so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (i) below, after the record date for the determination of stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the fair market value of the assets, evidences of indebtedness or other securities so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such fair market value by less than $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (c) and, to the extent applicable, the provisions of subsection (k) shall apply to such distribution.
(d) In case the Issuer or any Subsidiary of the Issuer shall make any distribution consisting exclusively of cash (excluding any cash portion of distributions for which an adjustment is required to be made in accordance with (c) above, or cash distributed upon a merger or consolidation to which Section 14.6 applies) to all or substantially all holders of Common Stock in an aggregate amount that, combined together with (i) all other such all-cash distributions made within the then preceding 12 months in respect of which no adjustment has been made and (ii) any cash and the fair market value of other consideration paid or payable in respect of any tender or exchange offer by the Issuer or any of its Subsidiaries for Common Stock concluded within the preceding 12 months in respect of which no adjustment has been made, exceeds 15% of the Issuer's market capitalization (defined as being the product of the then current market price of the Common Stock (determined as provided in subsection (f) below) times the number of shares of Common Stock then outstanding) on the record date of such distribution, then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the then current market price per share of the Common Stock on such record date less the amount of the cash so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (h) below, after the record date for the determination of stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the cash so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such amount of cash by less than $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (d), and, to the extent applicable, the provisions of subsection (k) shall apply to such distribution.
(e) In case there shall be completed a tender or exchange offer made by the Issuer or any Subsidiary of the Issuer for all or any portion of the Common Stock (any such tender or exchange offer being referred to as an "Offer") that involves an aggregate consideration having a fair market value as of the expiration of such Offer (the "Expiration Time") that, together with (i) any cash and the fair market value of any other consideration payable in respect of any other Offer, as of the expiration of such other Offer, expiring within the 12 months preceding the expiration of such Offer and in respect for which no Conversion Price adjustment pursuant to this subsection (e) has been made and (ii) the aggregate amount of any all-cash distributions referred to in subsection (d) of this Section 14.5 to all holders of Common Stock within the 12 months preceding the expiration of such Offer for which no conversion price adjustment pursuant to such subsection (d) has been made, exceeds 15% of the product of the then current market price per share (determined as provided in subsection (f) below) of the Class A common stock Common Stock on the record date mentioned below less Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time, the Conversion Price shall be reduced by multiplying such Conversion Price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be (i) the product of the then current market price per share (determined as provided in subsection (f) below) of the Common Stock on the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time minus (ii) the fair market value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the Offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted being referred to as the "Purchased Shares") and the denominator shall be the product of (i) such current market price per share on the Expiration Time times (ii) such number of outstanding shares on the Expiration Time less the number of Purchased Shares, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. For purposes of this subsection (e), the fair market value of any consideration with respect to an Offer shall be determined by the Board of Directors of the Issuer (whose determination shall be conclusive) and described in a Board Resolution.
(f) For the purpose of any computation under subsections (b), (c), (d) and (e) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the Last Sale Prices of a share of Common Stock for the five consecutive Trading Days selected by the Issuer commencing not more than 20 Trading Days before, and ending not later than, the earlier of the date in question and the date before the " 'ex' date," with respect to the issuance, distribution or Offer requiring such computation. If on any such Trading Day the Common Stock is not quoted by any organization referred to in the definition of Last Sale Price in Section 14.3 hereof, the fair value of the Common Stock on such record date (day, as determined by the Board of Directors, Directors of the Issuer (whose determination shall be conclusive evidence conclusive), shall be used. For purposes of this paragraph, the term " 'ex' date," when used with respect to any issuance, distribution or payments with respect to an Offer, means the first date on which the Common Stock trades regular way on the Nasdaq National Market (or if not listed or admitted to trading thereon, then on the principal national securities exchange on which the Common Stock is listed or admitted to trading) without the right to receive such issuance, distribution or Offer.
(g) In addition to the foregoing adjustments in subsections (a), (b), (c), (d) and (e) above, the Issuer will be permitted to make such reductions in the Conversion Price as it considers to be advisable in order that any event treated for Federal income tax purposes as a dividend of stock or stock rights will not be taxable to the holders of the shares of Common Stock.
(h) In the event the Issuer elects to make such a reduction in the Conversion Price, the Issuer will comply with the requirements of Rule 14e-1 of the Exchange Act and any other Federal and state laws and regulations thereunder if and to the extent that such laws and regulations are applicable in connection with the reduction of the Conversion Price of the Notes; provided that any provisions of this Indenture which conflict with such laws shall be deemed to be superseded by the provisions of such fair market value and described laws.
(i) In any case in a board resolution) which this Section 14.5 shall require that an adjustment (including by reason of the portion last sentence of subsection (a) or (c) above) be made immediately following a record date, the Issuer may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the evidences event giving rise to such adjustment), in which case the Issuer shall, with respect to any Security converted after such record date and on and before such adjustment shall have become effective (i) defer paying any Cash payment pursuant to Section 14.3 hereof or issuing to the Holder of indebtedness, such Security the number of shares of capital stock, cash, rights, options, warrants Common Stock and other Capital Stock of the Issuer (or other assets so distributed applicable to one share of Class A common stock (determined on the basis or securities) issuable upon such conversion in excess of the number of shares of Common Stock and other Capital Stock of the Class A common stock outstanding Issuer issuable thereupon only on the record date)basis of the Conversion Price prior to adjustment, and (ii) not later than five Business Days after such adjustment shall have become effective, pay to such Holder the appropriate Cash payment pursuant to Section 14.3 hereof and issue to such Holder the additional shares of Common Stock and other Capital Stock of the Issuer (or other assets or securities) issuable on such conversion.
(j) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1.0% of the Conversion Price; provided, that any adjustments which by reason of this subsection (j) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article Fourteen shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be. Whenever the Conversion Price is adjusted as herein provided, the Issuer shall promptly (i) file with the Trustee and each conversion agent an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment, and (ii) mail or cause to be mailed a notice of such adjustment to each holder of Securities at his address as the same appears on the registry books of the Issuer. Unless and until a Responsible Officer of the Trustee shall have received such Officers' Certificate, the Trustee shall not be deemed to have knowledge of any adjustment of the conversion Price and may assume without inquiry that the last Conversion Price of which the denominator shall be such Current Market Price Trustee has knowledge remains in effect.
(k) In the event that the Issuer distributes rights (including rights to distributions referred to by paragraphs (c) and (d) of this Section 14.5 to the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options extent this paragraph (k) applies thereto) or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants those referred to in subsection (b) above) ("Rights") pro rata to all holders of Class A common stockCommon Stock, Company mayso long as any such rights or warrants have not expired or been redeemed by the Issuer, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 Issuer shall make proper provision so that the holder Holder of the any Note who converts the Note (or any portion thereof) after the record date surrendered for such distribution and prior to the expiration or redemption of the Rights shall conversion will be entitled to receive upon such conversion, in addition to the shares of Class A common stock Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights rights or warrants to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights rights or warrants of separate certificates evidencing such Rights rights or warrants (the "Distribution Date"), the same number of Rights rights or warrants to which a holder of a number of shares of Class A common stock Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; rights or warrants, and (ii) if such conversion occurs after the such Distribution Date, the same number of Rights rights or warrants to which a holder of the number of shares of Class A common stock Common Stock into which the principal amount of the such Note so converted was convertible immediately prior to the such Distribution Date would have been entitled on the such Distribution Date in accordance with the terms and provisions of and applicable to the Rightsrights or warrants.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
Appears in 1 contract
Adjustment of Conversion Price. The conversion price as stated in Section 5.01 (the “Conversion Price Price”) shall be subject to adjustment adjusted from time to time by Parent as follows:
(a) In case Company Parent shall (i) pay a dividend on its Ordinary Shares in shares the form of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Ordinary Shares, (ii) make a distribution on its Ordinary Shares in shares the form of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Ordinary Shares, (iii) subdivide its outstanding shares of Class A common stock Ordinary Shares into a greater number of shares of Class A common stock Ordinary Shares, or (iv) combine its outstanding shares of Class A common stock Ordinary Shares into a smaller number of shares of Class A common stockOrdinary Shares, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that that, assuming the holder same Ordinary Share-to-ADS ratio applies prior to and after such event, the Holder of this Note any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock ADSs which he it would have owned immediately following had such action had the Note Security been converted immediately prior theretoto the happening of such event. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case Company Parent shall issue rights, options rights or warrants to all or substantially all holders of Class A common stock its Ordinary Shares entitling them (for a period commencing no earlier than the record date described below and expiring not more than 60 days after such record date) to subscribe for or purchase shares of Class A common stock Ordinary Shares (or securities convertible into Class A common stockOrdinary Shares) at a price per share (or having a conversion price per share) less than the Current Market Price per share Per Ordinary Share (as determined pursuant to subsection (fdefined in Section 5.06(g)) below) of the Class A common stock on the record date for determining the holders determination of the Class A common stock shareholders entitled to receive such rights, options rights or warrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which (x) the numerator shall be the number of shares of Class A common stock Ordinary Shares outstanding as of the close of business on such record date plus the number of shares of Class A common stock Ordinary Shares which the aggregate offering price of the total number of shares of Class A common stock Ordinary Shares so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered, which shall be determined by multiplying the number of Ordinary Shares issuable upon conversion of such convertible securities by the conversion price per Ordinary Share pursuant to the terms of such convertible securities) would purchase at such the Current Market Price (as determined pursuant to subsection (f) below)Per Ordinary Share on such record date, and of which (y) the denominator shall be the number of shares of Class A common stock Ordinary Shares outstanding on such record date plus the number of additional shares of Class A common stock so Ordinary Shares offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after such record date. For If at the purposes end of this subsection (b)the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon the number of shares additional Ordinary Shares actually issued (or the number of Class A common stock at any time outstanding shall not include shares held in the treasury Ordinary Shares issuable upon conversion of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directorsconvertible securities actually issued).
(c) In case Company Parent shall distribute to all or substantially all holders of Class A common stock its Ordinary Shares any shares of capital stock of Company Parent (other than Class A common stockin the form of Ordinary Shares), evidences of indebtednessindebtedness or other non-cash assets (including securities of any person other than Parent but excluding (1) dividends or distributions paid in cash or (2) dividends or distributions referred to in subsection (a) of this Section 5.06), cash, rights, options or shall distribute to all or substantially all holders of its Ordinary Shares rights or warrants entitling the holders thereof to subscribe for or purchase any of its securities (other than rights, options or excluding those rights and warrants described referred to in subsection (b) above) or other assets (including securities of Persons other than Company but this Section 5.06 and also excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) belowthe distribution of rights to all holders of Ordinary Shares pursuant to the adoption of a stockholders’ rights plan, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11if any), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the current Conversion Price in effect immediately prior to the date of such distribution by a fraction of which (x) the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock Per Ordinary Share on the record date mentioned below less the fair market value on such record date (as reasonably determined in good faith by the Board of DirectorsDirectors of Parent, whose determination shall be conclusive evidence of such fair market value and described in a board resolutionwhich shall be evidenced by an Officers’ Certificate of Parent delivered to the Trustee) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants evidences of indebtedness or other non-cash assets so distributed or of such rights or warrants applicable to one share of Class A common stock Ordinary Share (determined on the basis of the number of shares of the Class A common stock Ordinary Shares outstanding on the record date), and of which (y) the denominator shall be such the Current Market Price of the Class A common stockPer Ordinary Share on such record date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of the holders of Class A common stock shareholders entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company Parent shall, by dividend or otherwise, at any time make distribute (a distribution “Triggering Distribution”) to all or substantially all holders of its Class A common stock exclusively in Ordinary Shares cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of (i) any cash and the fair market value (as reasonably determined in good faith by the Board of Directors of Parent, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers’ Certificate of Parent delivered to the Trustee) of any other distributions made exclusively consideration payable in cash to all holders respect of Class A common stock any purchase by Parent for Ordinary Shares consummated within the 12 months preceding the date fixed for determining of payment of the stockholders entitled to such distribution (the "Triggering Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) 5.06 has been made plus and (yii) the aggregate amount of all Excess Payments in respect of any tender offers other cash distributions to all or other negotiated transactions by Company or any substantially all holders of its Subsidiaries for Class A common stock concluded Ordinary Shares made within the 12 months preceding the date of payment of the Triggering Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) 5.06 has been made, exceeds 12 1/2an amount equal to 10.0% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock Per Ordinary Share on the Business Day immediately preceding the day on which such Triggering Distribution Record Date is declared by Parent (the “Determination Date”) multiplied by the number of shares of Class A common stock Ordinary Shares outstanding on the Distribution Record Date (excluding shares held in the treasury of Company)Determination Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) Determination Date by a fraction fraction, of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock Per Ordinary Share on the Distribution Record Determination Date less the sum of the aggregate amount of cash and the aggregate Excess Payments fair market value (as reasonably determined in good faith by the Board of Directors of Parent, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers’ Certificate of Parent delivered to the Trustee) of any such other consideration so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect Triggering Distribution) applicable to one Ordinary Share (determined on the basis of which such adjustment is being made) by the number of shares of Class A common stock Ordinary Shares outstanding on the Distribution Record Determination Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock Per Ordinary Share on the Distribution Record Determination Date, such reduction to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution Record Dateis paid.
(e) In case a tender offer or other negotiated transaction any purchase made by Company or any Subsidiary Parent of Company for all or any portion Ordinary Shares and such purchase shall involve the payment of aggregate consideration in an amount (determined as the Class A common stock shall be consummated, if an Excess Payment is made in respect sum of such tender offer or other negotiated transaction and the aggregate amount of cash consideration and the aggregate fair market value (as reasonably determined in good faith by the Board of Directors of Parent, whose determination shall be conclusive evidence of such Excess Paymentfair market value and which shall be evidenced by an Officers’ Certificate of Parent delivered to the Trustee) of any other consideration) that, together with the sum of (x) the aggregate amount of (i) any distributionscash and the fair market value (as reasonably determined in good faith by the Board of Directors of Parent, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by dividend or otherwise, an Officers’ Certificate of Parent delivered to all holders the Trustee) of the Class A common stock made any other consideration payable in cash (including respect of any distributions of cash out of current or retained earnings of Company) other purchase by Parent for Ordinary Shares consummated within the 12 months preceding the date Expiration Date (as defined below) and in respect of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price adjustment pursuant to subsection (c) or (d) of this Section or this subsection (e) 5.06 has been made plus and (yii) the aggregate amount of all Excess Payments in respect of any other tender offers cash distributions to all or other negotiated transactions by Company or any substantially all holders of its Subsidiaries for Class A common stock concluded Ordinary Shares made within the 12 months preceding the Purchase Expiration Date and in respect of which no adjustment in the Conversion Price adjustment pursuant to subsection (c) or (d) of this Section or this subsection (e) 5.06 has been made, exceeds 12 1/2an amount equal to 10.0% of the product of the Current Market Price per share (determined Per Ordinary Share as provided in subsection (f) of this Section) of the Class A common stock most recent date (the “Expiration Date”) where a purchase was made (the last time at which a purchase was made on the Purchase Expiration Date is hereinafter sometimes called the “Expiration Time”) multiplied by the number of Ordinary Shares outstanding (including shares purchased within the last 12 months preceding the Expiration Date, the “Purchased Shares”) at the Expiration Time, then, immediately prior to the opening of Class A common stock outstanding business on the Purchase Date (including any tendered shares but excluding any shares held in day after the treasury of Company)Expiration Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such the Conversion Price in effect immediately prior to the effectiveness close of business on the Conversion Price reduction contemplated by this subsection (e) Expiration Date by a fraction of which the numerator shall be the product of the number of Ordinary Shares outstanding (including Purchased Shares) at the Expiration Time multiplied by the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock Per Ordinary Share on the Purchase Trading Day next succeeding the Expiration Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such the sum of (x) the aggregate consideration (determined as aforesaid) payable to shareholders of all Purchased Shares and (y) the product of the number of Ordinary Shares outstanding (less any Purchased Shares) at the Expiration Time and the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock Per Ordinary Share on the Purchase Trading Day next succeeding the Expiration Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Expiration Date. In the event that Parent is obligated to purchase Ordinary Shares, but Parent is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Ordinary Shares actually purchased. If the application of this Section 5.06(e) to any purchase would result in an increase in the Conversion Price, no adjustment shall be made for such purchase under this Section 5.06(e).
(f) For the purpose of any computation under subsections (b), (c), (d) and (e) of this Section 5.06, the current market price per Ordinary Share (the “Current Market Price Per Ordinary Share”) on any date shall be deemed to be the average of the daily Closing Prices for the 30 consecutive Trading Days commencing 45 Trading Days before (i) the Determination Date or the Expiration Date, as the case may be, with respect to distributions or purchases under subsection (e) of this Section 5.06 or (ii) the record date with respect to distributions, issuances or other events requiring such computation under subsection (b), (c) or (d) of this Section 5.06. The Closing Price for each day (the “Closing Price”) shall be the ADS Closing Price for such day as adjusted by the then effective Ordinary Shares-to-ADS ratio. The ADS Closing Price of each day (the “ADS Closing Price”) shall be the last reported sales price or, in case no such reported sale takes place on such date, the average of the reported closing bid and asked prices in either case on the New York Stock Exchange (the “NYSE”) or the Nasdaq National Market (the “NNM”), or, if Parent’s ADS is not listed or admitted to trading on the NYSE or the NNM, the principal national securities exchange or quotation system on which Parent’s ADS is quoted or listed or admitted to trading or, if not quoted or listed or admitted to trading on any national securities exchange or quotation system, the closing sales price or, in case no reported sale takes place, the average of the closing bid and asked prices, as furnished by any two members of the National Association of Securities Dealers, Inc. selected from time to time by Parent for that purpose. If no such ADS Closing Prices are available, the Current Market Price Per Ordinary Share shall be the fair value of an Ordinary Share (as reasonably determined in good faith by the Board of Directors of Parent whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officers’ Certificate of Parent delivered to the Trustee).
(g) In case the Ordinary Shares-to-ADS ratio is adjusted, then the Conversion Price shall be adjusted proportionately so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive ADSs representing the number Ordinary Shares as if the Security had been converted immediately prior to the Ordinary Shares-to-ADS ratio adjustment, provided, that if the adjustment to the Ordinary Shares-to-ADS ratio is adjusted pursuant to, or in connection with, or as a result of, an event described in subsections (a) to (e) of this Section 5.06, and an adjustment to the Conversion Price has been made pursuant to the applicable subsection, no adjustment to the Conversion Price shall be made pursuant to this subsection (g). An adjustment made pursuant to this subsection (g) shall become effective immediately after the effectiveness of the Ordinary Shares-to-ADS adjustment.
(h) In any case in which this Section 5.06 shall require that an adjustment be made following a record date or a Determination Date or Expiration Date, as the case may be, established for purposes of this Section 5.06, Parent may elect to defer (but only until five Business Days following the filing by Parent with the Trustee of the certificate described in Section 5.09) issuing to the Holder of any Security converted after such record date or Determination Date or Expiration Date the Ordinary Shares and other capital stock of Parent issuable upon such conversion over and above the Ordinary Shares and other capital stock of Parent issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the Ordinary Shares the issuance of which is so deferred, Parent shall issue or cause its transfer agent to issue due bills or other appropriate evidence prepared by Parent of the right to receive the Ordinary Shares. If any distribution in respect of which an adjustment to the Conversion Price is required to be made as of the record date or Determination Date or Expiration Date therefor is not thereafter made or paid by Parent for any reason, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such record date had not been fixed or such effective date or Determination Date or Expiration Date had not occurred.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price for each series shall be subject to adjustment adjusted from time to time as followsfollow:
(a) In case the Company shall shall, while any of the Debentures are outstanding, (i) pay a dividend or make a distribution with respect to its Common Stock Series A in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock Series A, (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock into a greater number of shares of Class A common stock or Common Stock Series A, (iviii) combine its outstanding shares of Class Common Stock Series A common stock into a smaller number of shares or (iv) issue by reclassification of Class its shares of Common Stock Series A common stockany shares of capital stock of the Company, the conversion privilege and the Conversion Price for each series of Debentures in effect immediately prior to such action shall be adjusted so that the holder Holder of this Note any Debenture thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common capital stock of the Company which he would have owned immediately following such action had the Note such Debenture been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or other distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification (or immediately after the record date if a record date shall have been established for such event). If, as a result of an adjustment made pursuant to this subsection (a), the Holder of any Debenture thereafter surrendered for conversion shall become entitled to receive shares of two or more classes or series of capital stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a Board Resolution filed with the Trustee) shall determine the allocation of the adjusted Conversion Price for each series of Debentures between or among shares of such classes or series of capital stock.
(b) In case the Company shall shall, while any of the Debentures are outstanding, issue rights, options rights or warrants to all holders of Class its Common Stock Series A common stock entitling them (for a period expiring within 45 days after the record date mentioned below) to subscribe for or purchase shares of Class Common Stock Series A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price current market price per share of Common Stock Series A (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrantsmentioned below, the Conversion Price shall be adjusted so that for the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price Debentures shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of issuance of such distribution rights or warrants by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) number of the Class shares of Common Stock Series A common stock outstanding on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence issuance of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, rights or warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of plus the number of shares which the aggregate offering price of the Class A common stock outstanding on the record date)total number of shares so offered for subscription or purchase would purchase at such current market price, and of which the denominator shall be the number of shares of Common Stock Series A outstanding on the date of issuance of such Current Market Price rights or warrants plus the number of the Class additional shares of Common Stock Series A common stockoffered for subscription or purchase. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock stockholders entitled to receive such distributionrights or warrants. Notwithstanding To the foregoingextent that shares of Common Stock Series A are not so delivered after the expiration of such rights or warrants, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect if such date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. For the purposes of this subsection, the number of shares of Common Stock Series A at any time outstanding shall not include shares held in the treasury of the Company. The Company shall not issue any rights or warrants in respect of shares of Common Stock Series A held in the treasury of the Company. In case any rights or warrants referred to in this subsection in respect of which an adjustment shall have been made shall expire unexercised within 45 days after the same shall have been distributed or issued by the Company, the Conversion Price shall be readjusted at the time of such expiration to the Conversion Price that would have been in effect if no adjustment had been made on account of the distribution or issuance of such expired rights or warrants.
(c) Subject to the last sentence of this subsection, in case the Company shall shall, by dividend or otherwise, distribute rightsto all holders of its Common Stock Series A evidences of its indebtedness, options or warrants to subscribe for additional shares of Company's any class or series of capital stock (other than rightsCommon Stock Series A), options cash or assets (including securities, but excluding any rights or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by any dividend or otherwise, at any time make a distribution to all holders of its Class A common stock paid exclusively in cash (including and any distributions of cash out of current dividend or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant referred to in subsection (ca) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such the Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (dc) by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in subsection (f) of this Sectionbelow) of the Class Common Stock Series A common stock on the Distribution Record Date date fixed for the payment of such distribution (the "Reference Date") less the sum fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), on the Reference Date, of the aggregate amount portion of the evidences of indebtedness, shares of capital stock, cash and the aggregate Excess Payments assets so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) distributed applicable to one share of Class Common Stock Series A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price current market price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record DateCommon Stock Series A, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Reference Date.
(e) . In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of event that such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwisedistribution is not so paid or made, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant shall again be adjusted to be the Conversion Price which would then be in effect if such dividend or distribution had not occurred. If the Board of Directors determines the fair market value of any distribution for purposes of this subsection (c) by reference to the actual or when issued trading market for any securities comprising such distribution, it must in doing so consider the prices in such market over the same period used in computing the current market price per share of Common Stock Series A (determined as provided in subsection (f)). For purposes of this subsection (c), any dividend or distribution that includes shares of Common Stock Series A or rights or warrants to subscribe for or purchase shares of Common Stock Series A shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, shares of capital stock, cash or assets other than such shares of Common Stock Series A or such rights or warrants (making any Conversion Price reduction required by this subsection (c)) immediately followed by (2) a dividend or distribution of such shares of Common Stock Series A or such rights or warrants (making any further Conversion Price reduction required by subsections (a) or (b), except (A) the Reference Date of such dividend or distribution as defined in this subdivision shall be substituted as (i) "the record date in the case of a dividend or other distribution" and (ii) "the record date for the determination of stockholders entitled to receive such rights or warrants" within the meaning of subsections (a) and (b) and (B) any shares of Common Stock Series A included in such dividend or distribution shall not be deemed outstanding for purposes of computing any adjustment of the Conversion Price in subparagraph (a).
(d) of this Section In case the Company shall pay or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers make a dividend or other negotiated transactions by Company or any distribution on its Common Stock Series A exclusively in cash (excluding all regular cash dividends if the annualized amount thereof per share of its Subsidiaries for Class Common Stock Series A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2does not exceed 15% of the product of the Current Market Price current market price per share (determined as provided in subsection (f) of this Section)) of the Class Common Stock Series A common stock on the Purchase Date multiplied by Trading Day next preceding the number date of shares declaration of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company)such dividend, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such the Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in subsection (f) of this Section)) of the Class Common Stock Series A common stock on the Purchase Date date fixed for the payment of such distribution less the sum of the aggregate amount of cash so distributed and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) not excluded as provided applicable to one share of Class Common Stock Series A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price current market price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase DateCommon Stock Series A, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Datedate fixed for the payment of such distribution; provided, however, that in the event the portion of the -------- ------- cash so distributed applicable to one share of Common Stock Series A is equal to or greater than the current market price per share (determined as provided in subsection (f)) of the Common Stock Series A on the record date mentioned above, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of Debentures shall have the right to receive upon conversion the amount of cash such Holder would have received had such Holder converted such Debentures immediately prior to the record date for the distribution of the cash. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such record date had not been fixed.
(e) In case a tender or exchange offer (other than an odd-lot offer) made by the Company or any Subsidiary of the Company for all or any portion of the Company's Common Stock Series A shall expire and such tender or exchange offer shall involve the payment by the Company or such Subsidiary of consideration per share of Common Stock Series A having a fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) at the last time (the "Expiration Time") tenders or exchanges may be made pursuant to such tender or exchange offer (as it shall have been amended) that exceeds 110% of the current market price per share (determined as provided in subsection (f)) of the Common Stock Series A on the Trading Day next succeeding the Expiration Time, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection by a fraction of which the numerator shall be the number of shares of Common Stock Series A outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the current market price per share (determined as provided in subsection (f)) of the Common Stock Series A on the Trading Day next succeeding the Expiration Time and the denominator shall be the sum of (x) the fair market value (determined as aforesaid) of the aggregate consideration payable to holders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares") and (y) the product of the number of shares of Common Stock Series A outstanding (less any Purchased Shares) at the Expiration Time and the current market price per share (determined as provided in subsection (f)) of the Common Stock Series A on the Trading Day next succeeding the Expiration Time, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time.
(f) For the purpose of any computation under subsections (b), (c), (d) or (e), the current market price per share of Common Stock Series A on any date in question shall be deemed to be the average of the daily Average Market Prices for the five consecutive Trading Days selected by the Company commencing not more than 20 Trading Days before, and ending not later than, the earlier of the day in question and, if applicable, the day before the "ex" date with respect to the issuance or distribution requiring such computation; provided, however, that if -------- ------- another event occurs that would require an adjustment pursuant to subsections (a) through (e), inclusive, the Board of Directors may make such adjustments to the Average Market Prices during such five Trading Day period as it deems appropriate to effectuate the intent of the adjustments in this Section, in which case any such determination by the Board of Directors shall be conclusive. For purposes of this paragraph, the term "ex" date, (1) when used with respect to any issuance or distribution, means the first date on which the Common Stock Series A trades regular way on the New York Stock Exchange or on such successor securities exchange as the Common Stock Series A may be listed or in the relevant market from which the Average Market Prices were obtained without the right to receive such issuance or distribution, and (2) when used with respect to any tender or exchange offer means the first date on which the Common Stock Series A trades regular way on such securities exchange or in such market after the Expiration Time of such offer.
(g) The Company may make such reductions in the Conversion Price, in addition to those required by subsections (a) through (e) as it considers to be advisable to avoid or diminish any income tax to holders of Common Stock Series A or rights to purchase Common Stock Series A resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes. The Company from time to time may reduce the Conversion Price by any amount for any period of time if the period is at least twenty (20) days, the reduction is irrevocable during the period, and the Board of Directors of the Company shall have made a determination that such reduction would be in the best interest of the Company, which determination shall be conclusive. Whenever the Conversion Price is reduced pursuant to the preceding sentence, the Company shall mail to Holders of the Debentures a notice of the reduction at least fifteen (15) days prior to the date the reduced Conversion Price takes effect, and such notice shall state the reduced Conversion Price and the period it will be in effect.
(h) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Price; provided; however; that any adjustments which -------- ------- by reason of this subparagraph (i) are not required to be made shall be carried forward and taken into account in determining whether any subsequent adjustment shall be required.
(i) Notwithstanding the foregoing provisions, the issuance of any shares of Common Stock Series A pursuant to any plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in shares of Common Stock Series A under any such plan, and the issuance of any shares of Common Stock Series A or options or rights to purchase such shares pursuant to any employee benefit plan or program of the Company or pursuant to any option, warrant, right or exercisable, exchangeable or convertible security outstanding as of the date the Debentures were first issued, shall not be deemed to constitute an issuance of Common Stock Series A or exercisable, exchangeable or convertible securities by the Company to which any of the adjustment provisions described above applies. There shall also be no adjustment of the Conversion Price in case of the issuance of any stock (or securities convertible into or exchangeable for stock) of the Company excep
Appears in 1 contract
Sources: First Supplemental Indenture (Citizens Utilities Capital L P)
Adjustment of Conversion Price. The Conversion Price shall be subject upon Issuance of Common Stock. If, during the period commencing on the Closing Date through and including the date which is 15 months from the Closing Date, the Issuer issues or sells, or is deemed to adjustment from time to time as follows:
(a) In case Company shall (i) pay a dividend in have issued or sold, any shares of Class A common stock Common Stock (other than the Debenture Shares and the Warrant Shares (each as defined in the Purchase Agreement) or shares of Common Stock deemed to holders have been issued by the Issuer in connection with a Stock Plan, shares of Class A common stock Common Stock issuable upon the exercise of any options or warrants outstanding on the date hereof or upon conversion of convertible securities outstanding on the date hereof, in each case as listed in Schedule 2.1(c) of the Purchase Agreement, shares of Common Stock issued or deemed to have been issued in a Strategic Venture (as defined below), or shares of Common Stock issued or deemed to have been issued as consideration for an acquisition by the Issuer of a division, assets or business (or stock constituting any event treated as portion thereof) from another person) for a consideration per share less than $10.00, then immediately after such for U.S. Federal income tax purposes), (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (issue or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock into a greater number of shares of Class A common stock or (iv) combine its outstanding shares of Class A common stock into a smaller number of shares of Class A common stocksale, the Conversion Price then in effect immediately prior to such action shall be adjusted so that reduced to an amount equal to the holder consideration per share of this Note thereafter surrendered for conversion Common Stock in such issuance or sale. A "Strategic Venture" shall be entitled mean a venture between the Issuer and a pharmaceutical or biotechnology company or an Affiliate thereof, the primary purpose of which is not to receive raise capital in the number form of shares equity (including without limitation through the issuance of Class A common warrants, convertible securities, phantom stock which he would have owned immediately following such action had the Note been converted immediately prior thereto. Any adjustment made rights, stock appreciation rights or other rights with equity features) and pursuant to this which the Issuer contributes to or issues securities of the Issuer valued at less than 50% of the entire contribution of the Issuer. If the Holder and the Issuer cannot agree on the value of the components of such contribution, the last two sentences of subsection (aE)(I) entitled "Calculation of Consideration" shall become effective immediately after the record date in the case apply. For purposes of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case Company shall issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants, the adjusted Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of under this subsection (bSection 4.6(g), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there following shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.applicable:
Appears in 1 contract
Sources: Convertible Debenture Agreement (Geron Corporation)
Adjustment of Conversion Price. The conversion price as stated in paragraph 6 of the Securities (the "Conversion Price Price") shall be subject to adjustment adjusted from time to time by the Company as follows:
(a) In case the Company shall (i) pay a dividend on its Class B Common Stock in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)B Common Stock, (ii) make a distribution on its Class B Common Stock in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)B Common Stock, (iii) subdivide its outstanding shares of Class A common stock B Common Stock into a greater number of shares of Class A common stock shares, or (iv) combine its outstanding shares of Class A common stock B Common Stock into a smaller number of shares of Class A common stockshares, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of this Note any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Class A common stock B Common Stock which he it would have owned immediately following had such action had the Note Security been converted immediately prior theretoto the record date of such event or the happening of such event (assuming such Security were convertible solely into shares of Class B Common Stock, based on the relevant Conversion Price, rather than Cash or Cash and Class B Common Stock as set forth in Section 4.05). Any An adjustment made pursuant to this subsection (a) shall become effective immediately after on the record "ex" date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. If any dividend or distribution of the type described in this Section 4.06(a) is declared but not actually paid or made, the Conversion Price shall again be adjusted to the Conversion Price that would have been in effect if such dividend or distribution had not been declared.
(b) In case the Company shall issue rights, options rights or warrants to all or substantially all holders of its Class A common stock B Common Stock entitling them for a period of not more than 60 days to subscribe for or purchase shares of Class A common stock B Common Stock (or securities convertible into Class A common stockB Common Stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock B Common Stock on the record Trading Day immediately preceding the "ex" date for determining the holders of the Class A common stock entitled to receive such rights, options or warrantsissuance, the Conversion Price shall be adjusted so that the same Conversion Price on the "ex" date shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record "ex" date by a fraction of which the numerator shall be the number of shares of Class A common stock B Common Stock outstanding as of the close of business on immediately prior to such record "ex" date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock B Common Stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered, which shall be determined by multiplying the number of shares of Class B Common Stock issuable upon conversion of such convertible securities by the conversion price per share of Class B Common Stock pursuant to the terms of such convertible securities) would purchase at such the Current Market Price (as determined pursuant to subsection (f) below)per share of Class B Common Stock on the Trading Day immediately preceding such "ex" date, and of which the denominator shall be the number of shares of Class A common stock B Common Stock outstanding on such record date plus the number of additional shares of Class A common stock so B Common Stock offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments adjustment shall be made successively whenever any such rights or warrants are issued and shall become effective immediately after on such record "ex" date. For If at the purposes end of this subsection the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised or distributed, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon the number of additional shares of Class B Common Stock actually issued (b), or the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury B Common Stock issuable upon conversion of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directorsconvertible securities actually issued).
(c) In case the Company shall distribute to all or substantially all holders of its Class A common stock B Common Stock any shares of capital stock Capital Stock of the Company (other than Class A common stockB Common Stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) Indebtedness or other non-cash assets (including securities of Persons any person other than the Company but excluding (i1) dividends or distributions paid exclusively in cash except as described Cash referred to in subsection (d) below, of this Section 4.06 or (ii2) dividends and or distributions described referred to in subsection (a) above of this Section 4.06), or shall distribute to all or substantially all holders of its Class B Common Stock rights or warrants to subscribe for or purchase any of its securities (excluding those rights and warrants referred to in subsection (iiib) distributions in connection with of this Section 4.06 and also excluding the consolidation, merger distribution of rights to all or transfer substantially all holders of assets covered by Section 9.11Class B Common Stock pursuant to the adoption of a stockholder rights plan or the detachment of such rights under the terms of such stockholder rights plan), then in each such case the Conversion Price shall be adjusted so that the same Conversion Price on the "ex" date for such distribution shall equal the price determined by multiplying the current Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) per share of the Class A common stock B Common Stock on the record Trading Day immediately preceding such "ex" date mentioned below less the fair market value on such record date Trading Day (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolutionwhich shall be evidenced by an Officers' Certificate delivered to the Trustee and the Conversion Agent) of the portion of the Capital Stock, evidences of indebtedness, shares of capital stock, cash, rights, options, warrants Indebtedness or other non-cash assets so distributed or of such rights or warrants applicable to one share of Class A common stock B Common Stock (determined on the basis of the number of shares of the Class A common stock B Common Stock outstanding on the record Trading Day immediately preceding such "ex" date), and of which the denominator shall be such the Current Market Price per share of the Class A common stockB Common Stock on the Trading Day immediately preceding such "ex" date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of the holders of Class A common stock shareholders entitled to receive such distribution. Notwithstanding In the foregoingevent the then fair market value (as so determined) of the portion of the Capital Stock, evidences of Indebtedness or other non-cash assets so distributed or of such rights or warrants applicable to one share of Class B Common Stock is equal to or greater than the Current Market Price per share of the Class B Common Stock on the Trading Day immediately preceding such "ex" date, in case Company lieu of the foregoing adjustment, adequate provision shall distribute rightsbe made so that each holder of a Security shall have the right to receive upon conversion the amount of Capital Stock, options evidences of Indebtedness or other non-cash assets so distributed or of such rights or warrants such holder would have received had such holder converted each Security immediately prior to the record date for such distribution. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value of any distribution for purposes of this Section 4.06(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Class B Common Stock. In the event that the Company implements a preferred shares rights plan ("Rights Plan"), upon conversion of the Securities into Class B Common Stock, to the extent that the Rights Plan has been implemented and is still in effect upon such conversion, the Holders of Securities will receive, in addition to the Class B Common Stock, the rights described therein (whether or not the rights have separated from the Class B Common Stock at the time of conversion), subject to the limitations set forth in the Rights Plan. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 4.06(c). Rights or warrants distributed by the Company to all or substantially all holders of Class B Common Stock entitling the holders thereof to subscribe for additional or purchase shares of the Company's capital stock Capital Stock (other than rightseither initially or under certain circumstances), options which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (i) are deemed to be transferred with such shares of Class B Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Class B Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.06 (and no adjustment to the Conversion Price under this Section 4.06 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Price shall be made under this Section 4.06(c). If any such right or warrant, including any such existing rights or warrants referred distributed prior to the date of this First Supplemental Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of Indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in subsection the event of any distribution (bor deemed distribution) aboveof rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Price under this Section 4.06 was made, ("Rights"1) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Price 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 Class B Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder B Common Stock as of the Note who converts date of such redemption or repurchase, and (2) in the Note (case of such rights or warrants which shall have expired or been terminated without exercise by any portion holders thereof) after , the record date for such distribution and prior to the expiration or redemption of the Rights Conversion Price shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined readjusted as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms rights and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have warrants had not been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rightsissued.
(d) In case the Company shall, by dividend or otherwise, at any time make distribute (a distribution "Triggering Distribution") to all or substantially all holders of its Class A common stock exclusively in cash B Common Stock Cash dividends and other Cash distributions (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of other than (x) distributions described in Section 4.06(e) below, (y) any dividend or distribution in connection with liquidation, dissolution or winding up or (z) any regular quarterly Cash dividend on Class B Common Stock to the extent that the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price Cash dividend per share (determined as provided in subsection (f) of this Section) of the Class A common stock on B Common Stock does not exceed the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date Dividend Threshold Amount (excluding shares held in the treasury of Companysubject to adjustment)), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect on the Trading Day immediately prior preceding the "ex" date with respect to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) such Cash dividend or distribution by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum B Common Stock as of the aggregate amount of cash and Trading Day immediately preceding the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable "ex" date with respect to outstanding shares of Class A common stock within such 12 months (includingthe dividend or distribution less the Dividend Adjustment Amount, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on B Common Stock as of the Distribution Record Date, such reduction Trading Day immediately preceding the "ex" date with respect to the dividend or distribution. Such decrease shall become effective immediately prior to the opening of business on the day following "ex" date for such dividend or distribution; provided, however, that, in the event the portion of the Triggering Distribution Record Dateapplicable to one share of Class B Common Stock is equal to or greater than the Current Market Price on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion the amount of Cash such Holder would have received had such Holder converted each Security immediately prior to the record date for such dividend or distribution. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared.
(e) In case a any tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within B Common Stock shall expire and such tender offer (as amended upon the 12 months preceding expiration thereof) shall involve the Purchase Date payment of aggregate consideration in an amount (determined as the sum of the aggregate amount of Cash consideration and in respect the aggregate fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence thereof and which no adjustment in shall be evidenced by an Officers' Certificate delivered to the Trustee and the Conversion Price pursuant to subsection (c) or (dAgent thereof) of this Section or this subsection (eany other consideration) has been made, that exceeds 12 1/2% of the product of an amount equal to the Current Market Price per share (determined of Class B Common Stock as provided in subsection (f) of this Section) of the Class A common stock last date (the "Expiration Date") tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Purchase Expiration Date multiplied by is hereinafter called the number "Expiration Time"), then, immediately prior to the opening of shares of Class A common stock outstanding business on the Purchase Date (including any tendered shares but excluding any shares held in day after the treasury of Company)Expiration Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such the Conversion Price in effect immediately prior to 5:00 p.m. (New York City time) on the effectiveness of the Conversion Price reduction contemplated by this subsection (e) Expiration Date by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) product of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock B Common Stock outstanding (including tendered shares but excluding any shares held in the treasury of the Company) immediately before the Expiration Time multiplied by the Current Market Price per share of the Class B Common Stock on the Purchase Date) Trading Day next succeeding the Expiration Date and the denominator shall be the sum of (x) the aggregate consideration (determined as aforesaid) payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares") and (y) the product of the number of shares of Class B Common Stock outstanding (less any Purchased Shares and excluding any shares held in the treasury of the Company) immediately after the Expiration Time and the Current Market Price per share (determined as provided of Class B Common Stock on the Trading Day next succeeding the Expiration Date. In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in subsection (f) effect based upon the number of shares actually purchased. If the application of this SectionSection 4.06(e) to any tender offer would result in an increase in the Conversion Price, no adjustment shall be made for such tender offer under this Section 4.06(e). For purposes of this Section 4.06(e), the Class A common stock on the Purchase Dateterm "tender offer" shall mean and include both tender offers and exchange offers, such reduction all references to become effective immediately prior to the opening "purchases" of business on the day following the Purchase Date.shares in tender offers (and all similar
Appears in 1 contract
Sources: Supplemental Indenture (Molson Coors Capital Finance ULC)
Adjustment of Conversion Price. 54 The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case Free Distributions of Common Shares, Stock Dividends, Sub-divisions, Consolidations and Reclassifications.
(i) If the Company shall (i1) pay make a free distribution of Common Shares or a dividend in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Shares or, (ii2) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)sub-divide its outstanding Common Shares, (iii3) subdivide consolidate its outstanding shares of Class A common stock into a greater number of shares of Class A common stock or (iv) combine its outstanding shares of Class A common stock Common Shares into a smaller number of shares Common Shares, or (4) reclassify any of Class A common stockits Common Shares into other securities of the Company, then the Conversion Price in effect immediately prior to such action shall be appropriately adjusted so that the holder Holder of any Note, the Conversion Date in respect of which occurs after the coming into effect of the adjustment described in this Note thereafter surrendered for conversion paragraph (a), shall be entitled to receive the number of shares Common Shares and/or other securities of Class A common stock the Company which he it would have owned immediately following held or would have been entitled to receive after the happening of any of the events described above had such action had the Note been converted converted, immediately prior thereto. Any to the happening of such event (or, if the Company has fixed a prior record date for the determination of shareholders entitled to receive any such free distribution or stock dividend or other securities issued upon any such subdivision, consolidation or re-classification, immediately prior to such record date), but without prejudice to the effect of any other adjustment to the Conversion Price made with effect from the date of the happening of such event (or such record date) or at any time thereafter.
(ii) An adjustment made pursuant to this subsection paragraph (a) shall become effective immediately after on the relevant event referred to above becoming effective or, if a record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case Company shall issue rightsis fixed therefor, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(ciii) In case Company The reclassification of Common Shares into securities other than Common Shares (other than any reclassification upon a consolidation or merger to which Section 9.07 applies) shall distribute be deemed to involve (1) a distribution of such securities other than Common Shares to all holders of Class A common stock shares Common Shares and (2) a subdivision or combination, as the case may be, of capital stock the number of Common Shares outstanding immediately prior to such reclassification into the number of Common Shares outstanding immediately thereafter.
(iv) If the Company shall make a free distribution of Common Shares, which distribution is to be paid or made to shareholders of the Company as of a record date which is also:
(other than Class A common stock)1) the record date for the issue of any options, evidences of indebtedness, cash, rights, options rights or warrants entitling which requires an adjustment of the holders thereof Conversion Price pursuant to subscribe for or purchase securities (other than rights, options or warrants described in subsection paragraph (b) abovebelow; or
(2) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect day immediately prior to the date of such distribution by a fraction issue of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, any Common Shares or any securities convertible into or exchangeable for Common Shares or options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options rights or warrants to subscribe for additional shares which requires an adjustment of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection paragraph (c) or below, then (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no except where such distribution gives rise to a retroactive adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection under (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (fii) of this Sectionparagraph (a)) no adjustment of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment Conversion Price in respect of which such adjustment is being made) applicable to one share of Class A common stock (which distribution shall be determined made under this paragraph (a), but in lieu thereof an adjustment shall be made under paragraph (b) or (c) below (as the case may require) by dividing including in the sum denominator of the aggregate amount of cash and fraction described therein the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall Common Shares to be issued pursuant to such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Datedistribution.
Appears in 1 contract
Sources: Indenture (China Shen Zhou Mining & Resources, Inc.)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(ai) In case Company the Corporation shall (i) pay at any time or from time to time after the original issuance of the Convertible Preferred Stock declare a dividend or make a distribution on the outstanding shares of Common Stock or securities convertible into Common Stock, in either case, in shares of Class A common stock to holders Common Stock, or effect a subdivision, combination, consolidation or reclassification of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its the outstanding shares of Class A common stock Common Stock into a greater or lesser number of shares of Class A common stock or (iv) combine its outstanding shares of Class A common stock into a smaller number of shares of Class A common stockCommon Stock, then, and in each such case, the Conversion Price in effect immediately prior to such action event or the record date therefor, whichever is earlier, shall be adjusted so that by multiplying such Conversion Price by a fraction, the holder numerator of this Note thereafter surrendered for conversion shall be entitled to receive which is the number of shares of Class A common stock which he would have owned immediately following such action had the Note been converted Common Stock that were outstanding immediately prior theretoto such event and the denominator of which is the number of shares of Common Stock outstanding immediately after such event. Any An adjustment made pursuant to this subsection (aSection 7(b)(i) shall become effective immediately after the record date (x) in the case of a any such dividend or distribution and shall become effective distribution, immediately after the effective close of business on the record date for the determination of holders of shares of Common Stock entitled to receive such dividend or distribution, or (y) in the case of a subdivision any such subdivision, reclassification, consolidation or combination, at the close of business on the day upon which such corporate action becomes effective.
(bii) In case Company the Corporation shall at any time or from time to time after the original issuance of the Convertible Preferred Stock issue shares of Common Stock (or options, rights, options warrants or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or other securities convertible into Class A common stockor exchangeable for shares of Common Stock) at a price per share (or having a an exercise or conversion price per share) less than the Current Market Conversion Price per share in effect as of the Business Day immediately preceding such issuance of Common Stock or securities, other than (as determined pursuant to subsection x) shares of Common Stock, options or other securities issued under any employee or director benefit plan or program of the Corporation approved by the Board of Directors (f) belowor any duly authorized committee thereof) of the Class A common stock on Corporation or shares of Common Stock issued upon the record date for determining exercise thereof, (y) shares of Common Stock issuable upon the holders conversion of the Class A common stock entitled to receive such rights, options or warrantsConvertible Preferred Stock, the Conversion Price shall be adjusted so that Series B Preferred Stock, the same shall equal Corporation's 7% Convertible Subordinated Notes Due 2003 or the price determined by multiplying Corporation's 7% Convertible Subordinated Debentures due 2011 or (z) shares of Common Stock issued pursuant to Sections 4(b)(i), 4(c)(i) or 9(a) (the issuances under clauses (x), (y) and (z) being referred to as "Excluded Issuances"), then, and in each such case, the Conversion Price in effect immediately prior to such record date issuance of Common Stock or securities shall be reduced so as to be equal to an amount determined by multiplying such Conversion Price by a fraction of which the numerator shall be the number sum of shares of Class A common stock outstanding as of the close of business on such record date plus (A) the number of shares of Class A common stock Common Stock outstanding on a fully diluted basis immediately prior to such issuance and (B) the number of additional shares of Common Stock which the aggregate offering price of consideration for the total number of shares of Class A common stock Common Stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market the then Conversion Price (as determined pursuant to subsection (f) below)per share of Common Stock, and of which the denominator shall be the number of shares of Class A common stock Common Stock outstanding on a fully diluted basis immediately after such issuance. An adjustment made pursuant to this Section 7(b)(ii) shall become effective (x) in the case of an offering of rights, warrants or options or other securities convertible into or exchangeable for Common Stock to all or substantially all of the holders of the Common Stock or any other issuance contemplated by this Section 7(b)(ii) where a record date is fixed for the determination of stockholders entitled to participate in such issuance, immediately after the close of business such record date plus and (y) in all other cases, the number Business Day immediately preceding the date of additional issuance of shares of Class A common stock so offered for subscription or purchase Common Stock (or options, rights, warrants or other securities convertible into which the convertible securities so offered are convertibleor exchangeable for shares of Common Stock) contemplated by this Section 7(b)(ii). Such adjustments shall become effective immediately after such record date. .
(iii) For the purposes of any adjustment of the Conversion Price pursuant to paragraph (ii) of this subsection (bSection 7(b), the following provisions shall be applicable:
(1) In the case of the issuance of Common Stock for cash in a public offering or private placement, the aggregate consideration shall be deemed to be the amount of cash paid therefor before deducting therefrom any discounts, commissions or placement fees payable by the Corporation to any underwriter or placement agent in connection with the issuance and sale thereof.
(2) In the case of the issuance of Common Stock for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the Fair Market Value thereof.
(3) In the case of the issuance of options to purchase or rights to subscribe for Common Stock, securities by their terms convertible into or exchangeable for Common Stock, or options to purchase or rights to subscribe for such convertible or exchangeable securities (except with respect to Excluded Issuances):
(A) the aggregate maximum number of shares of Class A common stock Common Stock deliverable upon exercise of such options to purchase or rights to subscribe for Common Stock shall be deemed to have been issued at any the time outstanding shall not include shares held such options or rights were issued and for a consideration equal to the consideration (determined in the treasury manner provided in Sections 7(b)(iii)(1) and (2) above), if any, received by the Corporation upon the issuance of Company but shall include shares issuable such options or rights plus the exercise price provided in respect of scrip certificates issued in lieu of fractions such options or rights for the Common Stock covered thereby;
(B) the aggregate maximum number of shares of Common Stock deliverable upon conversion of or in exchange for any such Class A common stock. The Company shall not issue any rights, convertible or exchangeable securities or upon the exercise of options to purchase or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders rights to subscribe for such convertible or purchase shares of Class A common stock at less than the Current Market Price, exchangeable securities and in determining the aggregate offering price of such shares of Class A common stock, there subsequent conversion or exchange thereof shall be taken into account any deemed to have been issued at the time such securities, options, or rights were issued and for a consideration equal to the consideration received by Company the Corporation for any such rightssecurities and related options or rights (excluding any cash received on account of accrued interest or accrued dividends), warrants, or options, plus the value of such additional consideration, if any, other than cash, to be received by the Corporation upon the conversion or exchange of such securities or the exercise of any related options or rights (the consideration in each case to be determined by in the Board of Directors.
manner provided above); (cC) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described on any increase in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares or decrease in exercise price of the Class A common stock outstanding on the record date), and Common Stock deliverable upon exercise of which the denominator shall be any such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe rights or conversions of or exchanges for additional shares of Company's capital stock (such securities, other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to a change resulting from the foregoing anti-dilution provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall forthwith be reduced so that the same shall equal the price determined by multiplying readjusted retroactively to give effect to such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid increase or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.decrease; and
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (i) make or pay a dividend (or other distribution) in shares of Class A common stock to holders Common Stock on any class of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Capital Stock of the Company, (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock or (iviii) combine or reclassify its outstanding shares of Class A common stock Common Stock into a smaller number of shares of Class A common stockshares, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of this Note any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which Common Stock that he would have owned immediately following such action had the Note such Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (h) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights, options or warrants to all holders of Class A common stock Common Stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) Common Stock at a price per share (or having a conversion price per share) less than the Current Market Price then current market price per share of the Common Stock (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrantsmentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by multiplying multiplying:
(i) the Conversion Price in effect immediately prior to the date of issuance of such record date rights or warrants by a fraction fraction, of which which
(ii) the numerator shall be (A) the number of shares of Class A common stock Common Stock outstanding as on the date of the close issuance of business on such record date rights, options or warrants, immediately prior to such issuance, plus (B) the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price current market price (as determined pursuant to subsection (f) belowby multiplying such total number of shares by the exercise price of such rights, options or warrants and dividing the product so obtained by such current market price), and of which which
(iii) the denominator shall be (A) the number of shares of Class A common stock Common Stock outstanding on the date of issuance of such record date rights, options or warrants, immediately prior to such issuance, plus (B) the number of additional shares of Class A common stock Common Stock which are so offered for subscription or purchase (or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall become effective immediately after such record date. For the purposes of this immediately, except as provided in subsection (b)h) below, after the number record date for the determination of shares of Class A common stock at holders entitled to receive such rights, options or warrants; provided, however, that if any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants issued by the Company as described in respect this subsection (b) are only exercisable upon the occurrence of shares of Class A common stock held certain triggering events relating to control and provided for in shareholder rights plans, then the Conversion Price will be adjusted only as provided in the treasury following paragraphs. Each share of Company. In determining whether any rights, options or warrants entitle the holders Common Stock issued upon conversion of Securities pursuant to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there this Article 12 shall be taken into account any consideration received by Company for entitled to receive the appropriate number of Rights (as defined in the Rights Agreement) and the certificates representing the Common Stock issued upon such rights, warrants, or options, the value of conversion shall bear such considerationlegends, if any, other than cash, to in each case as may be determined provided by the Board terms of Directors.
the Rights Agreement between the Company and ▇▇▇▇▇▇ Trust and Savings Bank (c) the "Rights Agreement"). Provided that such Rights Agreement requires that each share of Common Stock issued upon conversion of Securities shall be entitled to receive such Rights, then, notwithstanding anything else to the contrary in this Section, there shall not be any adjustment to the conversion privilege or Conversion Price as a result of the issuance of such Rights, the distribution of separate certificates representing such Rights, the exercise or redemption of such Rights in accordance with any such Rights Agreement, or the termination or invalidation of such Rights. In case addition, in the event the Company shall distribute amends the Rights Agreement or implements a replacement or successor stockholders' rights plan, such successor or amended rights plan must provide that upon conversion of the Securities the Holders will receive, in addition to the Common Stock issuable upon such conversion, such rights whether or not such rights have separated from the Common Stock at the time of such conversion. Rights or warrants distributed by the Company to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants Common Stock entitling the holders thereof to subscribe for or purchase securities shares of the Company's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"):
(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 Common Stock, shall not be deemed distributed for purposes of this Section until the occurrence of the earliest Trigger Event. In addition, in the event of any distribution of rights or warrants, or any Trigger Event with respect thereto, that shall have resulted in an adjustment to the Conversion Price under this Section, (1) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Price shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as thought it were a cash distribution, equal to the per share redemption or repurchase price received by a holder of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of any such rights or warrants all of which shall have expired without exercise by any holder thereof, the Conversion Price shall be readjusted as if such issuance had not occurred.
(c) In case the Company or any subsidiary of the Company shall distribute to all holders of Common Stock, any of its assets, evidences of indebtedness, cash or other assets or shares of Capital Stock other than rightsCommon Stock (including securities, options but other than (x) dividends or warrants described distributions exclusively in cash or (y) any dividend or distribution for which an adjustment is required to be made in accordance with subsection (a) or (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market then current market price per share of the Common Stock (determined as provided in subsection (f) below) on the record date mentioned below less the then fair market value (as reasonably determined in good faith by the Board of Directors of the Company) of the portion of the assets so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (h) below, after the record date for the determination of stockholders entitled to receive such distribution.
(d) In case the Company or any subsidiary of the Company shall make any distribution consisting exclusively of cash (excluding any cash portion of distributions for which an adjustment is required to be made in accordance with (c) above, or cash distributed upon a merger or consolidation to which Section 12.6 applies) to all holders of Common Stock in an aggregate amount that, combined together with (i) all other such all-cash distributions made within the then preceding 12 months in respect of which no adjustment has been made and (ii) any cash and the fair market value of other consideration paid or payable in respect of any tender offer by the Company or any of its Subsidiaries for Common Stock concluded within the preceding 12 months in respect of which no adjustment has been made, exceeds 10% of the Company's market capitalization (defined as being the product of the then current market price of the Common Stock (determined as provided in subsection (f) below) times the number of shares of Common Stock then outstanding) on the record date of such distribution, in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the then current market price per share of the Common Stock on such record date less the amount of the cash so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (h) below, after the record date for the determination of stockholders entitled to receive such distribution.
(e) In case there shall be completed a tender or exchange offer made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock (any such tender or exchange offer being referred to as an "Offer") that involves an aggregate consideration having a fair market value as of the expiration of such Offer (the "Expiration Time") that, together with (i) any cash and the fair market value of any other consideration payable in respect of any other Offer, as of the expiration of such other Offer, expiring within the 12 months preceding the expiration of such Offer and in respect for which no Conversion Price adjustment pursuant to this subsection (e) has been made and (ii) the aggregate amount of any all-cash distributions referred to in subsection (d) of this Section 12.5 to all holders of Common Stock within the 12 months preceding the expiration of such Offer for which no Conversion Price adjustment, pursuant to such subsection (d), has been made, exceeds 10% of the Company's market capitalization (defined as being the product of the then current market price per share (determined as provided in subsection (f) below) of the Class A common stock Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares)) at the Class A common stock outstanding on Expiration Time, the record date), and of which the denominator Conversion Price shall be reduced by multiplying such Current Market Conversion Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible effect immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, Expiration Time by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect fraction of which no Conversion Price adjustment pursuant to subsection the numerator shall be (ci) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price then current market price per share (determined as provided in subsection (f) of this Sectionbelow) of at the Class A common stock on the Distribution Record Date multiplied by Expiration Time times the number of shares of Class A common stock Common Stock outstanding on (including any tendered shares) at the Distribution Record Date Expiration Time minus (excluding shares held in ii) the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum fair market value of the aggregate amount of cash and consideration payable to stockholders based on the aggregate Excess Payments so distributed, paid or payable within such 12-month period acceptance (including, without limitation, up to any maximum specified in the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum terms of the aggregate amount Offer) of cash all shares validly tendered and not withdrawn as of the aggregate Excess Payments Expiration Time (the shares deemed so distributed, paid or payable with respect accepted being referred to outstanding shares of Class A common stock within such 12 months (including, without limitation, as the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date"Purchased Shares") and the denominator shall be the product of (i) such Current Market Price current market price per share at the Expiration Time times (determined as provided in subsection (fii) such number of this Section) outstanding shares at the Expiration Time less the number of the Class A common stock on the Distribution Record DatePurchased Shares, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record DateExpiration Time. For purposes of this subsection (e), the fair market value of any consideration with respect to an Offer shall be reasonably determined in good faith by the Board of Directors of the Company and described in a Board Resolution.
(f) For the purpose of any computation under subsections (b), (c), (d) and (e) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the Last Sale Prices of a share of Common Stock for the five consecutive Trading Days selected by the Company commencing not more than 20 Trading Days before, and ending not later than, the earlier of the date in question and the date before the "ex date," with respect to the issuance, distribution or Offer requiring such computation. If on any such Trading Day the Common Stock is not quoted by any organization referred to in the definition of Last Sale Price in Section 12.3 hereof, the fair value of the Common Stock on such day, as reasonably determined in good faith by the Board of Directors of the Company, shall be used. For purposes of this paragraph, the term "ex date," when used with respect to any issuance, distribution or payments with respect to an Offer, means the first date on which the Common Stock trades regular way on the Nasdaq National Market (or if not -62- listed or admitted to trading thereon, then on the principal market or exchange on which the Common Stock is listed or admitted to trading) without the right to receive such issuance, distribution or Offer.
(g) In addition to the foregoing adjustments in subsections (a), (b), (c), (d) and (e) above, the Company will be permitted to make such reductions in the Conversion Price as it considers to be advisable. In the event the Company elects to make such a reduction in the Conversion Price, the Company will comply with the requirements of Rule 14e-1 of the Exchange Act and any other Federal and state laws and regulations thereunder if and to the extent that such laws and regulations are applicable in connection with the reduction of the price of the Notes; provided, that any provisions of this Indenture which conflict with such laws shall be deemed superseded by the provisions of such laws.
(h) In any case in which this Section 12.5 shall require that an adjustment (including by reason of the last sentence of subsection (a) or (c) above) be made immediately following a tender offer record date, the Company may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), in which case the Company shall, with respect to any Security converted after such record date and on and before such adjustment shall have become effective (i) defer paying any Cash payment pursuant to Section 12.3 hereof or issuing to the Holder of such Security the number of shares of Common Stock and other Capital Stock of the Company (or other negotiated transaction made by Company assets or any Subsidiary of Company for all or any portion securities) issuable upon such conversion in excess of the Class A common stock number of shares of Common Stock and other Capital Stock of the Company issuable thereupon only on the basis of the Conversion Price prior to adjustment, and (ii) not later than five Business Days after such adjustment shall become effective, pay to such Holder the appropriate Cash payment pursuant to Section 12.3 hereof and issue to such Holder the additional shares of Common Stock and other Capital Stock of the Company issuable on such Conversion.
(i) No adjustment in the Conversion price shall be consummated, if required unless such adjustment would require an Excess Payment is made in respect increase or decrease of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders at least 1.0% of the Class A common stock Conversion Price; provided that any adjustments which by reason of this subsection (i) are not required to be made shall be carried forward and taken into account in cash (including any distributions subsequent adjustment. All calculations under this Article 12 shall be made to the nearest cent or to the nearest one-hundredth of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offera share, as the case may be be.
(the "Purchase Date"), and as to which no adjustment in j) Whenever the Conversion Price pursuant to subsection is adjusted as herein provided, the Company shall promptly (ci) or (d) of this Section or this subsection (e) has been made plus (y) file with the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within Trustee and the 12 months preceding the Purchase Date and in respect of which no adjustment in Registrar an Officers' Certificate setting forth the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% after such adjustment and setting forth a brief statement of the product facts requiring such adjustment, which certificate shall be conclusive evidence of the Current Market Price per share correctness of such adjustment, and (determined ii) mail or cause to be mailed a notice of such adjustment to each Security Holder at his address as provided the same appears on the registry books of the Registrar.
(k) In the event that the Company distributes rights or warrants (other than those referred to in subsection (fb) above) pro rata to holders of this Section) of the Class A common stock on the Purchase Date multiplied Common Stock, so long as any such rights or warrants have not expired or been redeemed by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price Company shall be reduced make proper provision so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.Holder
Appears in 1 contract
Sources: Indenture (Platinum Technology Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (i1) pay a dividend in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (ii2) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii3) subdivide its outstanding shares of Class A common stock into a greater number of shares of Class A common stock or (iv4) combine its outstanding shares of Class A common stock into a smaller number of shares of Class A common stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of this any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which he would have owned immediately following such action had the Note such Notes been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of the Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by the Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case the Company shall distribute to all holders of Class A common stock shares of capital stock of the Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than the Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.1115.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall distribute rights, options or warrants to subscribe for additional shares of the Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, the Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 15.6(c), make proper provision so that the each holder of the a Note who converts the such Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case the Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection paragraph (c) or (e) of this Section or this subsection paragraph (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by the Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections paragraphs (c) or (e) of this Section or this subsection paragraph (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection paragraph (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection paragraph (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection paragraph (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of the Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection paragraph (c) or paragraph (d) of this Section or this subsection paragraph (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by the Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection paragraph (c) or (d) of this Section or this subsection paragraph (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection paragraph (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection paragraph (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection paragraph (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (the "Conversion Price Price") shall be subject to adjustment that price set forth in paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall (i) pay a dividend or other distribution in shares of Class A common stock Common Stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock or shares, (iviii) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares of Class A common stockor (iv) reclassify its outstanding Common Stock, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of this Note any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock Common Stock which he it would have owned immediately following or have been entitled to receive had such action had the Note Security been converted immediately prior theretoto the happening of such event. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification.
(b) In case the Company shall issue rights, options to all or warrants to substantially all holders of Class A common stock its Common Stock, rights, warrants or options entitling them such holders (for a period commencing no earlier than the record date described below and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Class A common stock Common Stock (or securities convertible into Class A common stockCommon Stock) at a price per share (or having a conversion price per share) less than the Current Market Price current market price per share of Common Stock (as determined pursuant to in accordance with subsection (fe) below) of the Class A common stock on at the record date for determining the holders determination of the Class A common stock stockholders entitled to receive such rights, options warrants or warrantsoptions, the Conversion Price in effect immediately prior thereto shall be adjusted so that the same Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction fraction, the numerator of which the numerator shall be the number of shares of Class A common stock Common Stock outstanding as of the close of business on such record date date, plus the number of shares of Class A common stock which the aggregate offering subscription or purchase price of for the total number of shares of Class A common stock Common Stock offered by the rights, warrants or options so offered (to the holders of outstanding Class A common stock) for subscription or purchase issued (or the aggregate conversion price of the convertible securities so offeredoffered by such rights, warrants or options) would purchase at such Current Market Price (as determined pursuant to subsection (f) below)current market price, and the denominator of which the denominator shall be the number of shares of Class A common stock Common Stock outstanding on such record date plus the number of additional shares of Class A common stock so Common Stock offered for subscription by such rights, warrants or purchase options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustments adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. For If at the purposes end of this subsection the period during which such rights, warrants or options are exercisable not all rights, warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (b), or the number of shares of Class A common stock at any time outstanding shall not include shares held in Common Stock issuable upon conversion of convertible securities actually issued) for the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions total number of shares of such Class A common stock. The Company shall not issue any rights, options Common Stock offered (or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directorsconvertible securities offered).
(c) In case the Company shall distribute to all or substantially all holders of Class A common stock its Common Stock any shares of capital stock of the Company (other than Class A common stock), Common Stock) or evidences of its indebtedness, cash, other securities or other assets, or shall distribute to all or substantially all holders of its Common Stock, rights, warrants or options or warrants entitling the holders thereof to subscribe for or purchase any of its securities (other than excluding (i) rights, options or and warrants described referred to in subsection (b) above) above or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (df) below, ; (ii) dividends those dividends, distributions, subdivisions, combinations and distributions described reclassifications referred to in subsection (a) above above; and (iii) dividends and distributions paid in connection cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the consolidationpreceding 12 months in respect of which no adjustment has been made under this Section 4.6 and (B) the fair market value of consideration payable in respect of any repurchases (by way of tender offers or exchange offers) by the Company or any of its Subsidiaries, merger or transfer of assets covered by Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 9.114.6, does not exceed 10% of Market Capitalization as of the record date for such distribution), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction fraction, the numerator of which the numerator shall be the Current Market Price current market price per share (determined as provided defined in subsection (fe) below) of the Class A common stock Common Stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of DirectorsDirectors of the Company, whose determination shall be conclusive evidence of such fair market value and described in a board resolutionvalue) of the portion of the capital stock or evidences of indebtedness, shares securities or assets so distributed or of capital stock, cash, such rights, options, warrants or other assets so distributed options, in each case as applicable to one share of Class A common stock Common Stock, and the denominator of which shall be the current market price per share (determined on the basis as defined in subsection (e) below) of the number of shares of the Class A common stock outstanding Common Stock on the such record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock stockholders entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries shall repurchase (by way of tender offer or exchange offer) shares of Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for Class A common stock concluded such Common Stock, (ii) the aggregate fair market value of cash dividends and distributions of the type described in clause (iii) of the preceding paragraph (c) paid within the 12 twelve (12) months preceding the Distribution Record Date and date of purchase of such shares of Common Stock in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or 4.6 previously has been made, and (iii) the aggregate fair market value of any amounts previously paid for the repurchase of Common Stock of a type described in this subsection paragraph (d) within the twelve (12) months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 4.6 previously has been made, exceeds 12 1/210% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock Capitalization on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company)date of, and after giving effect to, such repurchase, then the Conversion Price shall be reduced adjusted so that the same shall equal the price determined by multiplying such the Conversion Price in effect immediately prior to the effectiveness date of the Conversion Price reduction contemplated by this subsection (d) such purchase by a fraction fraction, the numerator of which the numerator shall be the Current Market Price current market price per share (determined as provided defined in subsection (fe) of this Sectionbelow) of the Class A common stock Common Stock on the Distribution Record Date date of such repurchase, less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined quotient obtained by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within Aggregate Market Premium involved in such 12 months repurchase (including, without limitation, the distribution in respect of which such adjustment is being madeas defined hereinafter) by the difference between the number of shares of Class A common stock Common Stock outstanding on before such repurchase and the Distribution Record Date) number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be such Current Market Price the current market price per share (determined as provided defined in subsection (fe) of this Sectionbelow) of the Class A common stock Common Stock on the Distribution Record Date, date of such reduction to repurchase. Such adjustment shall become effective immediately prior after the date of such repurchase. For purposes of this subsection (d), the "Aggregate Market Premium" is the excess, if any, of the aggregate repurchase price paid for all such Common Stock over the aggregate current market value per share (as defined in subsection (e) below) of all such repurchased stock, determined with respect to each share involved in each such repurchase as of the opening date of business on the day following the Distribution Record Daterepurchase with respect to such share.
(e) In case a tender offer For the purpose of any computation under subsections (b), (c) and (d) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the Closing Prices for 20 consecutive Trading Days commencing 30 Trading Days before the record date with respect to any distribution, issuance or other negotiated transaction made by Company event requiring such computation. The Closing Price for each day shall be (i) the last sale price, or the average of the closing bid and asked prices if no sale occurred of such class of stock on the principal securities exchange on which such class of stock is listed, if the Common Stock is listed or admitted for trading on any national securities exchange, (ii) the last reported sale price of Common Stock on The Nasdaq Stock Market, or any Subsidiary similar system of Company automated dissemination of quotations of securities prices then in common use, if so quoted, or (iii) if not quoted as described in clause (i), the mean between the high bid and low asked quotations for all Common Stock as reported by the National Quotation Bureau Incorporated if at least two securities dealers have inserted both bid and asked quotations for such class of stock on at least 5 of the 10 preceding days. If the Common Stock is quoted on a national securities or central market system, in lieu of a market or quotation system described above, the Closing Price shall be determined in the manner set forth in clause (iii) of the preceding sentence if bid and asked quotations are reported but actual transactions are not, and in the manner set forth in clause (ii) of the preceding sentence if actual transactions are reported. If none of the conditions set forth above is met, the Closing Price of Common Stock on any day or the average of such last reported sale prices for any period shall be the fair market value of such class of stock as determined by a member firm of the New York Stock Exchange, Inc. selected by the Company. As used herein the term "Trading Days" with respect to Common Stock means (i) if the Common Stock is listed or admitted for trading on any national securities exchange, days on which such national securities exchange is open for business or (ii) if the Common Stock is quoted on The Nasdaq Stock Market or any portion similar system of automated dissemination of quotations of securities prices, days on which trades may be made on such system.
(f) If the Company implements a Stockholder Rights Plan (as defined below), the Company agrees that such Stockholder Rights Plan will provide that upon any conversion of the Class A common stock Securities by any Holder prior to a Trigger Event (as defined below), the holders of the Common Stock into which the Securities have been converted shall be consummatedreceive the rights, if an Excess Payment is made in respect of warrants or options issued under such tender offer plan. Rights, warrants or other negotiated transaction and options distributed by the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, Company to all holders of Common Stock entitling the Class A common holders thereof to subscribe for or purchase shares of the Company's capital stock made in cash (including any distributions of cash out of current either initially or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"under certain circumstances), which rights, warrants or options, until the occurrence of a specified event or events (a "Trigger Event"):
(i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable, and as to which (iii) are also issued in respect of future issuances of Common Stock,
(a " Stockholder Rights Plan") shall not be deemed distributed for purposes of this Section 4.6 and no adjustment in to the Conversion Price pursuant shall be required to subsection (c) or (d) be made until the occurrence of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments earliest Trigger Event. In addition, in respect the event of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and Trigger Event with respect thereto, that shall have resulted in respect of which no an adjustment in to the Conversion Price pursuant to subsection (c) or (d) of under this Section or this subsection 4.6, (e1) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury case of Company)any such rights, warrants or options which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Price shall be reduced so that readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the same case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder of Common Stock with respect to such rights, warrants or options (assuming such holder had retained such rights, warrants or options), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of any such rights, warrants or options all of which shall equal have expired without exercise by any holder thereof, the price determined by multiplying such Conversion Price shall be readjusted as if such issuance had not occurred. In any case in effect which this Section 4.6 shall require that an adjustment be made immediately prior following a record date established for purposes of Section 4.6, the Company may elect to defer (but only until five Business Days following the filing by the Company with the Trustee of the certificate described in Section 4.10) issuing to the effectiveness holder of any Security converted after such record date the shares of Common Stock and other capital stock of the Company issuable upon such conversion over and above the shares of Common Stock and other capital stock of the Company issuable upon such conversion only on the basis of the Conversion Price reduction contemplated by this subsection (e) by a fraction prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the numerator Company shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) issue or cause its transfer agents to issue due bills or other appropriate evidence of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within right to receive such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Dateshares.
Appears in 1 contract
Sources: Indenture (Nco Group Inc)
Adjustment of Conversion Price. The conversion price or rate (herein called the "Conversion Price Price") for a series of Securities shall be as set forth in a Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Sections 201 and 301 by or pursuant to which the form and terms of the Securities of such series were established, and, except as otherwise provided therein, shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (i1) make or pay a dividend (or other distribution) in shares of Class A common stock to holders Common Stock on any class of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Capital Stock of the Company, (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii2) subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock or shares, (iv3) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares or (4) issue by reclassification of Class A common stockits Common Stock any shares of capital stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of this Note any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common Common Stock or other capital stock of the Company which he would have owned immediately following such action had the Note such Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (h) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification. If as a result of an adjustment made pursuant to this subsection (a), the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of Capital Stock (including shares of Common Stock) of the Company, the Board of Directors (whose determination shall, if made in good faith, be conclusive and shall be described in a statement filed with the Trustee) shall determine the allocation of the adjusted Conversion Price between or among shares of such classes of Capital Stock.
(b) In case the Company shall issue rights, options or warrants to all holders of Class A common stock Common Stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) Common Stock at a price per share (or having a conversion price per share) less than the Current Market Price current market price per share (as determined pursuant to subsection (f) below) of the Class A common stock Common Stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrantsmentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by multiplying multiplying:
(1) the Conversion Price in effect immediately prior to the date of issuance of such record date rights, options or warrants by a fraction fraction, of which which
(2) the numerator shall be (A) the number of shares of Class A common stock Common Stock outstanding as on the date of the close issuance of business on such record date rights, options or warrants, immediately prior to such issuance, plus (B) the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price current market price (as determined pursuant to subsection (f) belowby multiplying such total number of shares by the exercise price of such rights, options or warrants and dividing the product so obtained by such current market price), and of which which
(3) the denominator shall be (A) the number of shares of Class A common stock Common Stock outstanding on the date of issuance of such record date rights, options or warrants, immediately prior to such issuance, plus (B) the number of additional shares of Class A common stock Common Stock which are so offered for subscription or purchase (or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall become effective immediately after such record date. For the purposes of this immediately, except as provided in subsection (b)h) below, after the number record date for the determination of shares of Class A common stock at holders entitled to receive such rights or warrants; PROVIDED, HOWEVER, that if any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined issued by the Board Company as described in this subsection (b) are only exercisable upon the occurrence of Directorscertain triggering events relating to control and provided for in shareholders' rights plans, then the Conversion Price shall not be adjusted as provided in this subsection (b) until such triggering events shall occur.
(c) In case the Company or any of its Subsidiaries shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), Common Stock evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (shares of Capital Stock other than rightsCommon Stock, options or warrants described in subsection (b) above) cash or other assets (including securities of Persons securities, but other than Company but excluding (ix) regular dividends or distributions paid exclusively in cash except as described or (y) any dividend or distribution for which an adjustment is required to be made in subsection (d) below, (ii) dividends and distributions described in accordance with subsection (a) above and or (iiib) distributions in connection with the consolidationabove), merger subsection (a) or transfer of assets covered by Section 9.11(b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in subsection (f) below) of the Class A common stock Common Stock on the record date mentioned below less the then fair market value on such record date (as determined by the Board of Directors, whose determination shall shall, if made in good faith, be conclusive evidence of such fair market value and described in a board resolutionvalue) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)Common Stock, and of which the denominator shall be such Current Market Price current market price per share of the Class A common stockCommon Stock. Such adjustment shall become effective immediately immediately, except as provided in subsection (h) below, after the record date for the determination of the holders of Class A common stock stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the fair market value of the assets, evidences of indebtedness or other securities so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such fair market value by less than $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (c) and, to the extent applicable, the provisions of subsection (k) shall apply to such distribution.
(d) In case the Company or any Subsidiary of the Company shall distribute rightsmake any distribution consisting exclusively of cash (excluding any cash portion of distributions for which an adjustment is required to be made in accordance with (c) above, options or warrants cash distributed upon a merger or consolidation to subscribe which Section 1705 applies) to all holders of Common Stock in an aggregate amount that, combined together with (i) all other such all-cash distributions made within the then preceding 12 months in respect of which no adjustment has been made and (ii) any cash and the fair market value of other consideration paid or payable in respect of any tender offer by the Company or any of its Subsidiaries for Common Stock concluded within the preceding 12 months in respect of which no adjustment has been made, exceeds 15% of the Company's market capitalization (defined as being the product of the then current market price of the Common Stock (determined as provided in subsection (f) below) times the number of shares of Common Stock then outstanding) on the record date of such distribution, then in each 85 such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the then current market price per share of the Common Stock on such record date less the amount of the cash so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (h) below, after the record date for the determination of stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the cash so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such amount of cash by less that $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (d), and, to the extent applicable, the provisions of subsection (k) shall apply to such distribution.
(e) In case there shall be completed a tender or exchange offer made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock (any such tender or exchange offer being referred to as an "Offer") that involves an aggregate consideration having a fair market value as of the expiration of such Offer (the "Expiration Time") that, together with (i) any cash and the fair market value of any other consideration payable in respect of any other Offer, as of the expiration of such other Offer, expiring within the 12 months preceding the expiration of such Offer and in respect for which no Conversion Price adjustment pursuant to this subsection (e) has been made and (ii) the aggregate amount of any all-cash distributions referred to in subsection (d) of this Section 1704 to all holders of Common Stock within the 12 months preceding the expiration of such Offer for which no Conversion Price adjustment pursuant to such subsection (d) has been made, exceeds 15% of the product of the then current market price per share (determined as provided in subsection (f) below) of the Common Stock on the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time, the Conversion Price shall be reduced by multiplying such Conversion Price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be (i) the product of the then current market price per share (determined as provided in subsection (f) below) of the Common Stock on the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time minus (ii) the fair market value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the Offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted being referred to as the "Purchased Shares") and the denominator shall be the product of (i) such current market price per share on the Expiration Time times (ii) such number of outstanding shares on the Expiration Time less the number of Purchased Shares, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. For purposes of this subsection (e), the fair market value of any consideration with respect to an Offer shall be reasonably determined in good faith by the Board of Directors of the Company and described in a Board Resolution.
(f) For the purpose of any computation under subsections (b), (c), (d) and (e) above, the current market price per share of Common Stock on any date shall be deemed to be the 86 average of the Last Sale Prices of a share of Common Stock for the five consecutive Trading Days selected by the Company commencing not more than 20 Trading Days before, and ending not later than, the earlier of the date in question and the date before the "ex date," with respect to the issuance, distribution or Offer requiring such computation. For purposes of this paragraph, the term "ex date," when used with respect to any issuance, distribution or payments with respect to an Offer, means the first date on which the Common Stock trades regular way on the New York Stock Exchange (or if not listed or admitted to trading thereon, then on the principal national securities exchange on which the Common Stock is listed or admitted to trading) without the right to receive such issuance, distribution or Offer.
(g) In addition the foregoing adjustments in subsections (a), (b), (c), (d) and (e) above, the Company will be permitted to make such reductions in the Conversion Price as it considers to be advisable in order that any event treated for Federal income tax purposes as a dividend of stock or stock rights will not be taxable to the holders of the shares of Common Stock. In the event the Company elects to make such a reduction in the Conversion Price, the Company shall comply with the requirements of Rule 14e-1 of the Exchange Act and any other Federal and state laws and regulations thereunder if and to the extent that such laws and regulations are applicable in connection with the reduction of the Conversion Price; PROVIDED, HOWEVER, that any provisions of this Indenture which conflict with such laws shall be deemed to be superseded by the provisions of such laws.
(h) In any case in which this Section 1704 shall require that an adjustment (including by reason of the second sentence of subsection (a) or (c) above) be made immediately following a record date, the Company may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), in which case the Company shall, with respect to any Security converted after such record date and before such adjustment shall have become effective, (i) defer paying any cash payment pursuant to Section 1703 or issuing to the Holder of such Security the number of shares of Common Stock and other Capital Stock of the Company (or other assets or securities) issuable upon such conversion in excess of the number of shares of Common Stock and other Capital Stock of the Company issuable thereupon only on the basis of the Conversion Price prior to adjustment and (ii), not later than five Business Days after such adjustment shall have become effective, pay to such Holder the appropriate cash payment pursuant to Section 1703 and issue to such Holder the additional shares of CompanyCommon Stock and other Capital Stock of the Company (or other assets or securities) issuable on such conversion.
(i) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% of the Conversion Price; PROVIDED, HOWEVER, that any adjustments which by reason of this subsection (i) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article Seventeen shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(j) Whenever the Conversion Price is adjusted as herein provided, the Company shall promptly (i) file with the Trustee and each Conversion Agent an Officer's capital stock Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment, and (ii) give or cause to be given a notice of such adjustment to each Holder of Securities in the manner provided in Section 106.
(k) In the event that the Company distributes rights (including rights to distributions referred to by paragraphs (c) and (d) of this Section 1704 to the extent this paragraph (k) applies thereto) or warrants (other than rights, options or warrants those referred to in subsection (b) above) ("Rights") pro rata to all holders of Class A common stockCommon Stock, so long as any such rights or warrants have not expired or been redeemed by the Company, the Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 shall make proper provision so that the holder Holder of the Note who converts the Note (or any portion thereof) after the record date Security surrendered for such distribution and prior to the expiration or redemption of the Rights shall conversion will be entitled to receive upon such conversion, in addition to the shares of Class A common stock Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights rights or warrants to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights rights or warrants of separate certificates evidencing such Rights rights or warrants (the "Distribution Date"), the same number of Rights rights or warrants to which a holder of a number of shares of Class A common stock Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; rights or warrants, and (ii) if such conversion occurs after the such Distribution Date, the same number of Rights rights or warrants to which a holder of the number of shares of Class A common stock Common Stock into which the principal amount of the Note such Security so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.convert
Appears in 1 contract
Sources: Subordinated Indenture (Carriage Cemetery Services of Idaho Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (i) pay a dividend in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock into a greater number of shares of Class A common stock or (iv) combine its outstanding shares of Class A common stock into a smaller number of shares of Class A common stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of this any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which he would have owned immediately following such action had the Note such Notes been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of the Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by the Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case the Company shall distribute to all holders of Class A common stock shares of capital stock of the Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than the Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.common
Appears in 1 contract
Adjustment of Conversion Price. 6.1.1 The Conversion Price shall in effect at any date will be subject to adjustment from time to time in the events and in the manner provided as follows.
6.1.2 If and whenever at any time after the date hereof and prior to the Maturity Date, the Company:
(a) In case Company shall (i) pay a dividend in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide subdivides its outstanding shares of Class A common stock Common Shares into a greater number of shares of Class A common stock Common Shares; or
(b) reduces, combines or (iv) combine consolidates its outstanding shares of Class A common stock Common Shares into a smaller number of shares of Class A common stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of this Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which he would have owned immediately following such action had the Note been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.Common Shares;
(bc) In case Company shall issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (issues Common Shares or securities convertible into Class A common stock) at or exchangeable for Common Shares to the holders of all or substantially all of the outstanding Common Shares as a price per share stock dividend or otherwise (other than an issue of Common Shares or having a conversion price per share) less than the Current Market Price per share (as determined securities convertible into or exchangeable for Common Shares to holders of Common Shares pursuant to subsection a right granted to such holders to receive such Common Shares in lieu of Dividends Paid in the Ordinary Course);
(fd) below) makes a distribution on its outstanding Common Shares to the holders of all or substantially all of the Class A common stock outstanding Common Shares payable in Common Shares or securities convertible into or exchangeable for Common Shares (other than an issue of Common Shares to holders of Common Shares pursuant to a right granted to such holders to receive such Common Shares in lieu of Dividends Paid in the Ordinary Course); (any of such events in subsections (a), (b), (c) and (d), and being called a “Common Share Reorganization”) then the Conversion Price then in effect will be adjusted effective immediately on the effective date or record date for determining the happening of a Common Share Reorganization, as the case may be, at which the holders of Common Shares are determined for the Class A common stock entitled to receive such rightspurpose of the Common Share Reorganization, options or warrants, the Conversion Price shall be adjusted so that the same it shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such effective date or record date by a fraction fraction, the numerator of which the numerator shall will be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock Common Shares outstanding on such effective date or record date plus before giving effect to such Common Share Reorganization and the denominator of which will be the total number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective Common Shares outstanding immediately after giving effect to such record date. For Common Share Reorganization (including, in the purposes of this subsection (b)case where securities exchangeable for or convertible into Common Shares are distributed, the number of shares of Class A common stock Common Shares that would have been outstanding had all such securities been exchanged for or converted into Common Shares on such effective date or record date).
6.1.3 If and whenever at any time outstanding shall not include shares held in after the treasury date hereof and prior to the Maturity Date, the Company fixes a record date for the issue of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle to the holders of all or substantially all of the outstanding Common Shares under which such holders are entitled, during a period expiring not more than 45 days after the record date for such issue (the “Rights Period”), to subscribe for or purchase shares Common Shares or securities exchangeable for or convertible into Common Shares at a price per share to the holder (or at an exchange price or conversion price per share during the Rights Period to the holder in the case of Class A common stock at securities exchangeable for or convertible into Common Shares) which is less than 95% of the Current Market Price, and in determining Price for the aggregate offering price Common Shares on such record date (any of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11events being called a “Rights Offering”), then in each such case the Conversion Price shall will be adjusted effective immediately after the end of the Rights Period so that the same it shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption end of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) Period by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.fraction:
Appears in 1 contract
Sources: Indenture (Alamos Gold Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company pays any cash dividend (including regularly scheduled cash dividends) or other cash distribution to holders of its Common Stock, then on and after the record date for the determination of holders of Common Stock entitled to such dividend or distribution, the Conversion Price shall be decreased by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which (i) the numerator shall be (A) the Current Market Price of the Common Stock in effect at the close of business on such record date, less (B) the per share amount of such dividend or other distribution, and (ii) the denominator shall be the Current Market Price of the Common Stock in effect at the close of business on such record date. Such decrease shall become effective immediately prior to the opening of business on the day following such record date.
(b) In case the Company shall (i) pay a dividend in shares of Class A common stock Common Stock to all holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (ii) make a distribution in shares of Class A common stock Common Stock to all holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (iii) subdivide its the outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock Common Stock, or (iv) combine its the outstanding shares of Class A common stock Common Stock into a smaller number of shares of Class A common stockCommon Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of this Note any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock Common Stock which he such Holder would have owned immediately following such action had the Note such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (aSECTION 10.8(b) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case Company shall issue rights, options . If any dividend or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) distribution of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options type described in this SECTION 10.8(b) is declared but not so paid or warrantsmade, the Conversion Price shall again be adjusted so that the same shall equal the price determined by multiplying to the Conversion Price which would then be in effect immediately prior to if such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription dividend or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall distribution had not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directorsbeen declared.
(c) In case the Company shall dividend or distribute to all holders of Class A common stock Common Stock shares of capital stock Capital Stock of the Company (other than Class A common stockCommon Stock), evidences of indebtednessIndebtedness or other assets (other than cash dividends or distributions covered by SECTION 10.8(a)), cash, rightsor shall dividend or distribute to all holders of Common Stock warrants, options or warrants entitling the holders thereof rights to subscribe for or purchase securities (other than rightssecurities, options then, in each such case, unless such dividend or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions distribution is made in connection with the consolidation, merger or transfer of assets covered by Section 9.11a Spin-Off (in which event SECTION 10.14 shall apply), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined decreased by multiplying the Conversion Price in effect immediately prior to the close of business on the record date for the determination of holders of Common Stock entitled to such dividend or distribution by a fraction of which (i) the numerator shall be an amount equal to (A) the Current Market Price of Common Stock, less (determined as provided in subsection (fB) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined in good faith by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) Board Resolution), on such record date, of the portion of the shares of Capital Stock, evidences of indebtednessIndebtedness, shares of capital stockassets, cashwarrants, rights, options, warrants options or other assets so rights to be dividended or distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)Common Stock, and of which (ii) the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Datemarket price, such reduction decrease to become effective immediately prior to the opening of business on the day following such record date; provided, however, that if such denominator is equal to or less than one, then, in lieu of the Distribution Record Dateforegoing adjustment to the Conversion Price, adequate provision shall be made so that each Holder shall have the right to receive upon conversion of its Securities, in addition to the shares of Common Stock issuable (and cash, if any, payable) upon such conversion, an amount of shares of Capital Stock, evidences of Indebtedness, assets, options, warrants or rights that such Holder would have received had such Holder converted all of its Securities on such record date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such dividend or distribution had not been declared.
(d) In case the Company shall issue or sell shares of Common Stock or Common Stock Equivalents (other than Excluded Securities), at a price per share lower than the Conversion Price in effect immediately prior to such issuance or sale, then the Conversion Price shall be reduced on the date of such issuance to the lowest price per share at which any such shares of Common Stock or Common Stock Equivalents have been issued or sold. In connection with the adjustments contemplated by this SECTION 10.8(d), the following provisions shall apply:
(i) No adjustment of any Conversion Price pursuant to this SECTION 10.8(d) shall have the effect of increasing such Conversion Price above the Conversion Price in effect immediately prior to such adjustment.
(ii) In the case of the issuance of Common Stock or Common Stock Equivalents for cash, the consideration shall be deemed to be the amount of cash paid, excluding amounts paid or payable for accrued interest.
(iii) In the case of the issuance of Common Stock or Common Stock Equivalents for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the fair value thereof as determined in good faith by the Board.
(iv) The disposition of treasury shares shall be considered an issuance of Common Stock or Common Stock Equivalents.
(v) If any Common Stock or Common Stock Equivalents are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving corporation, the amount of consideration therefore shall be deemed to be the fair value of the portion of the net assets of the non-surviving entity that is attributable to such Common Stock or Common Stock Equivalents. The fair value of any consideration or net assets other than cash and securities (and, if applicable, the portions thereof attributable to any such stock or securities) shall be determined in good faith by the Board.
(vi) Common Stock Equivalents shall be deemed issued for the consideration, if any, received by the Company upon the issuance of such Common Stock Equivalents (excluding any cash received or receivable on account of accrued interest or accrued dividends), plus the additional consideration, if any, to be received by the Company upon the full exercise, conversion or exchange of such Common Stock Equivalents.
(vii) All Common Stock or Common Stock Equivalents deemed issued pursuant to this SECTION 10.8(d) shall be considered issued only at the time of its deemed issuance and any actual issuance of such stock shall not be an actual issuance or a deemed issuance of Common Stock or Common Stock Equivalents under the provisions of this SECTION 10.8(d).
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company If the Volume Weighted Average Price for all or any portion the 20 Trading Days ending on and including the Trading Day immediately preceding the second year anniversary of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be Issue Date (the "Purchase “Conversion Price Reset Date"), and as to which no adjustment in ”) is less then the Conversion Price pursuant to subsection (c) or (d) then in effect, then effective as of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company)Reset Date, the Conversion Price shall be reduced so to an amount equal to 110% of such Volume Weighted Average Price; provided, that (i) the same Conversion Price shall equal not be reduced to an amount less than 67.7% of the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of such adjustment, and (ii) under no circumstances shall the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection increased.
(f) In addition to the foregoing adjustments, the Company, from time to time and to the extent permitted by law, may decrease the Conversion Price by any amount for a period of this Sectionat least 20 days or such longer period as may be required by law, if the Board of Directors has made a determination, which determination shall be conclusive, that such decrease would be in the best interests of the Company. Such Conversion Price decrease shall be irrevocable during such period. The Company shall give notice to the Trustee and cause notice of such decrease to be mailed to each Holder of Securities at such Holder’s address as the same appears on the registry books of the Registrar, at least 15 days prior to the date on which such decrease commences.
(g) The Company may make such decreases in the Conversion Price, in addition to those required by SECTION 10.8 hereof, as it determines to be advisable in order that any stock dividend, subdivision of shares, distribution or rights to purchase stock or securities or distribution of securities convertible into or exchangeable for stock made by the Company or to its stockholders will not be taxable to the recipients thereof.
(h) The computation of any adjustment to be made pursuant to SECTIONS 10.8(a), (b) or (c) above shall be subject to the following:
(i) if the “ex” date for any event (other than the event requiring such computation) that requires an adjustment to the Conversion Price pursuant to SECTIONS 10.8(a), (b) or (c) occurs on or after the tenth Trading Day prior to the applicable Determination Date, and prior to the “ex” date for the issuance or distribution requiring such computation, the Volume Weighted Average Price for each Trading Day prior to the “ex” date for such other event shall be adjusted by multiplying such Volume Weighted Average Price by the reciprocal of the fraction by which the Conversion Price is so required to be adjusted as a result of such other event;
(ii) if the “ex” date for any event (other than the event requiring such computation) that requires an adjustment to the Conversion Price pursuant to SECTIONS 10.8(a), (b) or (c), above occurs on or after the “ex” date for the issuance or distribution requiring such computation and on or prior to the applicable Determination Date, the Volume Weighted Average Price for each Trading Day on and after the “ex” date for such other event shall be adjusted by multiplying such Volume Weighted Average Price by the same fraction by which the Conversion Price is so required to be adjusted as a result of such other event; and
(iii) if the “ex” date for the event requiring such computation is on or prior to the applicable Determination Date, after taking into account any adjustment required pursuant to clause (i) or (ii) above, the Volume Weighted Average Price for each Trading Day on and after such “ex” date shall be adjusted by adding thereto the amount of any cash and the fair market value (as determined in good faith by the Company’s Board of Directors) of the Class A common stock on evidences of Indebtedness, shares of Capital Stock or other securities or assets or cash being distributed (in the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within event requiring such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being madecomputation) applicable to one share of Class A common stock (which shall be determined by dividing the sum Common Stock as of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening close of business on the day following before such “ex” date. For purposes of this subsection, the Purchase Dateterm “ex” date, (A) when used with respect to any issuance or distribution, means the first date on which the Common Stock trades the regular way on the relevant Trading Market from which the Volume Weighted Average Price was obtained without the right to receive such issuance or distribution, (B) when used with respect to any subdivision or combination of shares of Common Stock, means the first date on which the Common Stock trades the regular way on such exchange or in such Trading Market after the time at which such subdivision or combination becomes effective, and (C) when used with respect to any tender offer or exchange offer means the first date on which the Common Stock trades the regular way on such Trading Market after the expiration time of such tender offer or exchange offer (as it may be amended or extended).
Appears in 1 contract
Sources: Indenture (Charys Holding Co Inc)
Adjustment of Conversion Price. The Conversion Price shall be as specified in Section 9 of the form of Note, subject to adjustment as provided below. The Conversion Price shall be adjusted from time to time by the Company as follows:
(a) In case Company the Company, after the date of this Indenture, shall (i) pay a dividend or make a distribution on its Common Stock in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock or shares, (iviii) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of Class A common stockCapital Stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of this any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which he Common Stock or other Capital Stock of the Company that it would have owned or been entitled to receive immediately following such action had the such Note been converted immediately prior theretoto the occurrence of such event. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date date, in the case of a dividend or distribution and shall become effective distribution, or immediately after the effective date date, in the case of a subdivision subdivision, combination or combinationreclassification. If, as a result of an adjustment made pursuant to this subsection (a), the holder of any Note thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of Capital Stock or shares of Common Stock and other Capital Stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed by the Company with the Trustee and with any Conversion Agent as soon as practicable) shall determine the allocation of the adjusted Conversion Price between or among shares of such classes of Capital Stock or shares of Common Stock and other Capital Stock.
(b) In case Company the Company, after the date of this Indenture, shall issue rights, warrants or options to all or warrants to substantially all holders of Class A common stock its outstanding shares of Common Stock entitling them (for a period expiring within 45 days after the date fixed for determination for shareholders entitled to receive such rights, warrants or options) to subscribe for or purchase shares of Class A common stock Common Stock (or securities convertible into Class A common stockCommon Stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.the
Appears in 1 contract
Adjustment of Conversion Price. The conversion price as stated in paragraph 7 of the Securities (the “Conversion Price Price”) shall be subject to adjustment adjusted (without duplication) from time to time by the Issuer as follows:
(a) In case Company the Issuer shall (i) pay a dividend on its Common Stock in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (ii) make a distribution on its Common Stock in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (iii) subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock shares, or (iv) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares of Class A common stockshares, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of this Note any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Class A common stock Common Stock which he it would have owned immediately following had such action had the Note Security been converted immediately prior theretoto the happening of such event. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(bi) In case Company the Issuer shall issue rightsdistribute to all or substantially all holders of its Common Stock any shares of capital stock of the Issuer (other than Common Stock), options evidences of indebtedness, rights or warrants to purchase the Issuer’s capital stock or other non-cash assets (the “distributed assets”) (including securities of any person other than the Issuer but excluding (1) dividends or distributions to the extent paid in cash, (2) dividends or distributions referred to in subsection (a) of this Section 4.6 and (3) the distribution of rights to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined Common Stock pursuant to subsection (f) below) a Rights Plan adopted before or after the date of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rightsthis Indenture), options or warrants, then the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on the record date of with respect to such distribution by a fraction fraction:
(1) the numerator of which the numerator shall be the Current Market Sale Price (as determined as provided in accordance with subsection (f) belowof this Section 4.6) of the Class A common stock Common Stock for the 10 Trading Days commencing on and including the record fifth Trading Day after the date mentioned below on which “ex-dividend trading” commences for such dividend or distribution on Nasdaq, the New York Stock Exchange or such other national or regional exchange or market on which the Common Stock is then listed or quoted, less the fair market value on such the record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other distributed assets so distributed applicable to one share of Class A common stock Common Stock (determined on the basis of the number of shares of the Class A common stock Common Stock outstanding on the record date), and ; and
(2) the denominator of which the denominator shall be such Current Market the Sale Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be as determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this SectionSection 4.6) of the Class A common stock Common Stock for the 10 Trading Days commencing on and including the Distribution Record Date multiplied by fifth Trading Day after the number of shares of Class A common stock outstanding date on the Distribution Record Date (excluding shares held in the treasury of Company)which “ex-dividend trading” commences for such dividend or distribution on Nasdaq, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying New York Stock Exchange or such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of other national or regional exchange or market on which the numerator Common Stock is then listed or quoted.
(ii) Such reduction shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) record date for such distribution. In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of event that such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwisedistribution is not so paid or made, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant shall again be adjusted to subsection (c) be the Conversion Price which would then be in effect if such dividend or (d) distribution had not been declared. For purposes of this Section or this subsection (e) has been made plus (y) 4.6(b), to the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within extent securities are distributed, the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% fair market value of the product of securities so distributed will be based on the Current Market Price per share average sale prices (determined in a similar manner to the Sale Price as provided determined in accordance with subsection (f) of this SectionSection 4.6) of those securities for the Class A common stock 10 Trading Days commencing on and including the Purchase Date multiplied by fifth Trading Day after the number of shares of Class A common stock outstanding date on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company)which “ex-dividend trading” commences for such dividend or distribution on Nasdaq, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying New York Stock Exchange or such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of other national or regional exchange or market on which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid securities are then listed or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Datequoted.
Appears in 1 contract
Sources: Indenture (Wynn Resorts LTD)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the event that the Company shall (i) pay a dividend or other distribution, in shares of its Class A common stock to holders Common Stock, on any class of Class A common stock (Capital Stock of the Company or any event treated as such for U.S. Federal income tax purposes)Subsidiary which is not wholly owned by the Company, (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock or (iviii) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares of Class A common stockshares, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of this Note any Debenture thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which he Common Stock of the Company that such Holder would have owned immediately following or have been entitled to receive after the happening of any of the events described above had such action had the Note Debenture been converted immediately prior theretoto the happening of such event. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the event that the Company shall issue or distribute Capital Stock or issue rights, warrants or options or warrants to all holders of Class A common stock entitling them the holder thereof to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) Capital Stock at a price per share (or having a conversion price per share) less than the Current Market Price per share on the date of issuance or distribution (as determined pursuant to subsection provided that the issuance of Capital Stock upon the exercise of warrants or options will not cause an adjustment in the Conversion Price if no such adjustment would have been required at the time such warrant or option was issued), then at the earliest of (fi) belowthe date the Company shall enter into a firm contract for such issuance or distribution, (ii) of the Class A common stock on the record date for determining the holders determination of the Class A common stock stockholders entitled to receive any such rights, options warrants or warrantsoptions, if applicable, or (iii) the date of actual issuance or distribution of any such Capital Stock or rights, warrants or options, the Conversion Price in effect immediately prior to such earliest date shall be adjusted so that the same Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record earliest date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.by:
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (herein called the "Conversion Price Price") shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (i1) pay a dividend in shares of Class A common stock Common Stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (ii2) make a distribution in shares of Class A common stock Common Stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (iii3) split or otherwise subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock Common Stock or (iv4) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares of Class A common stockCommon Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of this Note any Debenture thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock Common Stock which he would have owned immediately following such action had the Note such Debentures been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights, options or warrants to all or substantially all holders of Class A common stock Common Stock entitling them to subscribe (for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less period commencing no earlier than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the determination of holders of the Class A common stock Common Stock entitled to receive such rights, options or warrantswarrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into or exchangeable for Common Stock) at a price per share less than the current market price (as determined pursuant to subsection (d) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock Common Stock outstanding as of the close of business on such record date date, plus the number of shares of Class A common stock Common Stock which the aggregate offering price of the total number of offered shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below)current market price, and of which the denominator shall be the number of shares of Class A common stock Common Stock outstanding on such record date plus the number of additional shares of Class A common stock so Common Stock offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For If at the purposes end of this subsection the period during which such warrants or rights are exercisable not all warrants or rights shall have been exercised, the adjusted conversion price shall be immediately readjusted to what it would have been based on the number of additional shares of Common Stock actually issued (b), or the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury Common Stock issuable upon conversion of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directorsconvertible securities actually issued).
(c) In case the Company shall distribute to all holders of Class A common stock Common Stock shares of capital any class of stock other than Common Stock, evidences of Company indebtedness or other assets (other than Class A common stockdividends or cash distributions payable out of consolidated net income or retained earnings), evidences or shall distribute to all or substantially all holders of indebtedness, cash, rights, options Common Stock rights or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described those referred to in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price (determined as provided in subsection (fd) below) of the Class A common stock Common Stock on the record date mentioned below less the then fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolutionvalue) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed or of such subscription rights or warrants applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)Common Stock, and of which the denominator shall be such Current Market Price current market price of the Class A common stockCommon Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the event that the Company shall distribute rights, options rights or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants those referred to in subsection (b) above) ("Rights") pro rata to all holders of Class A common stockCommon Stock, the Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 4.6, make proper provision so that the each holder of the Note a Debenture who converts the Note such Debenture (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock Common Stock into which the principal amount of the Note Debenture so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at The current market price per share of Common Stock on any time make a distribution date shall be deemed to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with be the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% average of the product of daily closing prices for thirty consecutive trading days commencing 45 trading days before the Current Market Price per share (determined as provided day in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the question. The closing price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator for each day shall be the Current Market Price per share (determined as provided last reported sales price regular way or, in subsection (f) of this Section) case no such reported sale takes place on such date, the average of the Class A common stock reported closing bid and asked prices regular way, in either case on the Distribution Record Date less New York Stock Exchange Composite Tape, or if the sum Common Stock is not listed or admitted to trading on such Exchange, on the principal national securities exchange on which the Common Stock is listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, the closing sales price of the aggregate amount of cash and Common Stock as quoted by the aggregate Excess Payments so distributedNASDAQ National Market System, paid or payable within such 12-month period (including, without limitationin case no reported sale takes place, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum average of the aggregate amount of cash closing bid and asked prices as quoted by the aggregate Excess Payments so distributedNASDAQ National Market System or any comparable system, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitationif the Common Stock is not quoted on the NASDAQ National Market System or any comparable system, the distribution closing sales price or, in respect case no reported sale takes place, the average of which such adjustment is being made) the closing bid and asked prices, as furnished by any two members of the National Association of Securities Dealers, Inc. selected from time to time by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record DateCompany for that purpose.
(e) In any case in which this Section 4.6 shall require that an adjustment be made immediately following a tender offer or other negotiated transaction made record date established for purposes of Section 4.6, the Company may elect to defer (but only until five Business Days following the filing by the Company or any Subsidiary of Company for all or any portion with the Trustee of the Class A common stock shall be consummated, if an Excess Payment is made certificate described in respect of such tender offer or other negotiated transaction and Section 4.10 below) issuing to the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount holder of any distributions, by dividend or otherwise, to all holders Debenture converted after such record date the shares of Common Stock and other capital stock of the Class A common Company issuable upon such conversion over and above the shares of Common Stock and other capital stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock Company issuable upon such conversion only on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness basis of the Conversion Price reduction contemplated by this subsection (e) by a fraction prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the numerator Company shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) issue or cause its transfer agents to issue due bills or other appropriate evidence of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within right to receive such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Dateshares.
Appears in 1 contract
Sources: Indenture (Mci Worldcom Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a1) In case the Company shall (i1) pay a dividend in shares of Class A common stock Common Stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (ii2) make a distribution in shares of Class A common stock Common Stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (iii3) subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock Common Stock or (iv4) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares of Class A common stockCommon Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of this any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock Common Stock which he would have owned immediately following such action had the Note such Notes been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a1) shall become effective immediately after the record date Record Date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b2) In case the Company shall issue rights, options rights or warrants to substantially all holders of Class A common stock Common Stock entitling them (for a period commencing no earlier than the Record Date for the determination of holders of Class A Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such Record Date) to subscribe for or purchase shares of Class A common stock Common Stock (or securities convertible into Class A common stockCommon Stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f6) below) of the Class A common stock Common Stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrantsRecord Date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date Record Date by a fraction of which the numerator shall be the number of shares of Class A common stock Common Stock outstanding as of the close of business on such record date Record Date, plus the number of shares of Class A common stock Common Stock which the aggregate offering price of the total number of offered shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below)Price, and of which the denominator shall be the number of shares of Class A common stock Common Stock outstanding on such record date Record Date plus the number of additional shares of Class A common stock so Common Stock offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of DirectorsRecord Date.
(c3) In case the Company shall distribute to all holders of Class A common stock Common Stock shares of capital stock of the Company (other than Class A common stock)Common Stock, evidences of indebtednessindebtedness or other assets (other than cash dividends), cash, rights, options or shall distribute to substantially all holders of Class A Common Stock rights or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described those referred to in subsection (b2) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f6) below) of the Class A common stock Common Stock on the record date Record Date mentioned below less the then fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolutionresolution of the Board of Directors) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed or of such subscription rights or warrants applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)Common Stock, and of which the denominator shall be such Current Market Price of the Class A common stockCommon Stock. Such adjustment shall become effective immediately after the record date Record Date for the determination of the holders of Class A common stock Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the event that the Company shall distribute rights, options rights or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants those referred to in subsection (b2) above) ("Rights") pro rata to all holders of Class A common stockCommon Stock, the Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 2.3(f), make proper provision so that the holder each Holder of the a Note who converts the such Note (or any portion thereof) after the record date Record Date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock Common Stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d4) In case the Company shall, by dividend or otherwise, at any time make a distribution distribute to all holders of its Class A common stock exclusively in Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection paragraph (c3) of this SectionSection 2.3) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of its Class A common stock Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection paragraphs (c3) or (e5) of this Section 2.3 or this subsection paragraph (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d4) has been made, exceeds 12 1/210% of the product of the Current Market Price per share (determined as provided in subsection paragraph (f6) of this SectionSection 2.3) of the Class A common stock Common Stock on the Distribution Record Date multiplied by times the number of shares of Class A common stock Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection paragraph (d4) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection paragraph (f6) of this SectionSection 2.3) of the Class A common stock Common Stock on the Distribution Record Date less the sum amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share (based on the pro rata portion of the aggregate amount of such cash and other consideration (including any Excess Payments), divided by the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock Common Stock outstanding on the Distribution Record Date) of Class A Common Stock and the denominator shall be such Current Market Price per share (determined as provided in subsection paragraph (f6) of this SectionSection 2.3) of the Class A common stock Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e5) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of Company for all or any portion of the Class A common stock Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Class A common stock Common Stock made in cash (specifically including any distributions of cash out of current or retained earnings of Company) earnings), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Tender Date"), and as to which no adjustment in the Conversion Price pursuant to subsection paragraph (c3) or paragraph (d4) of this Section 2.3 or this subsection paragraph (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e5) has been made, exceeds 12 1/210% of the product of the Current Market Price per share (determined as provided in subsection paragraph (f6) of this SectionSection 2.3) of the Class A common stock Common Stock on the Purchase Tender Date multiplied by times the number of shares of Class A common stock Common Stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of the Company)) on the Tender Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection paragraph (e5) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection paragraph (f6) of this SectionSection 2.3) of the Class A common stock Common Stock on the Purchase Tender Date less the sum amount of such Excess Payments and such cash distributions, if any, applicable to one share (based on the pro rata portion of the aggregate amount of cash and the aggregate such Excess Payments so distributedand such cash distributions, paid or payable within such 12 month period (including, without limitation, divided by the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, Common Stock outstanding on the Excess Payment in respect of which such adjustment is being madeTender Date) by the number of shares of Class A common stock outstanding on the Purchase Date) Common and the denominator shall be such Current Market Price per share (determined as provided in subsection paragraph (f6) of this SectionSection 2.3) of the Class A common stock Common Stock on the Purchase Tender Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Tender Date.
(6) The current market price (the "Current Market Price") per share of Class A Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) ten (10) consecutive Business Days ending on the last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
(7) In any case in which this Section 2.3(f) shall require that an adjustment be made immediately following a Record Date, the Company may elect to defer (but only until five (5) Business Days following the filing by the Company with the Trustee of the certificate described in Section 2.3(j) hereof) issuing to the Holder of any Note converted after such Record Date the shares of Class A Common Stock and other Capital Stock of the Company issuable upon such conversion over and above the shares of Class A Common Stock and other Capital Stock of the Company issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence of the right to receive such shares.
(8) Upon the occurrence of a Change of Control, in which both (a) the Company's stockholders receive consideration per share of Class A Common Stock that is greater than the Conversion Price, without giving effect to the adjustment described below, at the effective time of the Change of Control, and (b) at least 10% of the total consideration paid to the Company's stockholders consists of cash, cash equivalents, securities or other assets (other than publicly traded securities), which are referred to herein as "non-public consideration." In such circumstances, upon conversion of the Notes after the Change of Control, in addition to the Class A Common Stock or other securities deliverable upon the conversion of the Notes as described in the other provisions of this Section 2.3, including clauses (1) through (7) of this Section 2.3(f), the Holder will receive a number of publicly traded securities of the acquiror determined through the following calculation: PV cashflows X (non-public consideration/total consideration) Acquiror stock price Where: PV cashflows = the present value of the aggregate interest payments that would have been payable on the Notes from the date of conversion through May 3, 2005, calculated using a discount rate equal to the yield to maturity of U.S. Treasury securities having a maturity closest to, but not later than, May 3, 2005, Total consideration = the total value of the consideration payable to the Company's stockholders at the effective time of the Change of Control, with the value of any assets or securities other than cash or a publicly traded security being determined in good faith by the Company's Board of Directors based upon an opinion as to that value obtained from an accounting, appraisal or investment banking firm of international standing, Acquiror stock price = the price per security of the acquiror's publicly traded securities delivered in connection with the Change of Control transaction at the effective time of the Change of Control provided, however, that if the consideration received by the Company's stockholders in respect of the Change of Control consists of at least 75% non-public consideration or if the acquiror's common stock is not publicly traded, then upon conversion of the Notes after the Change of Control, in lieu of issuing additional securities of the acquiror, as set forth above, the Holder will be entitled to receive an additional amount in cash calculated as follows: PV cashflows X (non-public consideration/total consideration)
Appears in 1 contract
Sources: Second Supplemental Indenture (Adelphia Communications Corp)
Adjustment of Conversion Price. The conversion price (herein called the "Conversion Price Price") shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (i1) pay a dividend in shares of Class A common stock Common Stock to holders of Class A common any class of capital stock (or any event treated as such for U.S. Federal income tax purposes)of the Company, (ii2) make a distribution in shares of Class A common stock Common Stock to holders of Class A common any class of capital stock (or any event treated as such for U.S. Federal income tax purposes)of the Company, (iii3) subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock Common Stock or (iv4) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares of Class A common stockCommon Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of this Note any Debenture thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock Common Stock which he would have owned immediately following such action had the Note such Debentures been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights, options rights or warrants to all holders of Class A common stock Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Class A common stock Common Stock (or securities convertible into Class A common stockCommon Stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share current market price (as determined pursuant to subsection (fd) below) of the Class A common stock Common Stock on the such record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrantsdate, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock Common Stock outstanding as of the close of business on such record date date, plus the number of shares of Class A common stock Common Stock which the aggregate offering price of the total number of offered shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below)current market price, and of which the denominator shall be the number of shares of Class A common stock Common Stock so outstanding on such record date plus the number of additional shares of Class A common stock so Common Stock offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments adjustment shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case the Company shall distribute to substantially all holders of Class A common stock Common Stock shares of capital any class of stock other than Common Stock, evidences of Company indebtedness or other assets (other than Class A common stockcash dividends out of retained earnings), evidences or shall distribute to substantially all holders of indebtedness, cash, rights, options Common Stock rights or warrants entitling the holders thereof to subscribe for or purchase to securities (other than rights, options or warrants described those referred to in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price (determined as provided in subsection (fd) below) of the Class A common stock Common Stock on the record date mentioned below less the then fair market value on such record date (as determined by the Board of DirectorsDirectors of the Company, whose determination shall be conclusive evidence of such fair market value and described in a board resolutionvalue) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed or of such subscription rights or warrants applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)Common Stock, and of which the denominator shall be such Current Market Price current market price of the Class A common stockCommon Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the event that the Company shall distribute rights, options rights or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants those referred to in subsection (b) above) ("Rights") pro rata to all holders of Class A common stockCommon Stock, the Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 SECTION 14.05, make proper provision so that the each holder of the Note a Debenture who converts the Note such Debenture (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock Common Stock into which the principal amount of the Note Debenture so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at For the purpose of any time make a distribution to all holders of its Class A common stock exclusively in cash computation under subsections (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection b) and (c) of this Section) in an aggregate amount thatabove, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% current market price of the product Common Stock on any date shall be deemed to be the average of the Current Market Price per share (determined as provided in subsection (f) of this Section) Prices of the Class A common stock on Common Stock for 30 consecutive trading days commencing 45 trading days before the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held date in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Datequestion.
(e) In any case in which this SECTION 14.05 shall require that an adjustment be made immediately following a tender offer or other negotiated transaction made by record date, the Company or any Subsidiary may elect to defer the effectiveness of Company for all or any portion such adjustment (but in no event until a date later than the effective time of the Class A common event giving rise to such adjustment), in which case the Company shall, with respect to any Debenture converted after such record date and before such adjustment shall have become effective (i) defer paying any cash payment pursuant to SECTION 14.03 or delivering to the Holder of such Debenture the number of shares of Common Stock and other capital stock of the Company deliverable upon such conversion in excess of the number of shares of Common Stock and other capital stock of the Company deliverable thereupon only on the basis of the Conversion Price prior to adjustment, and (ii) not later than five business days after such adjustment shall have become effective, pay to the Holder of such Debenture the appropriate cash payment pursuant to SECTION 14.03 and issue to such Holder the additional shares of Common Stock and other capital stock of the Company deliverable on such conversion.
(f) No adjustment in the Conversion Price shall be consummatedrequired unless such adjustment would result in an increase or decrease of at least 1% thereof, if an Excess Payment is provided, however, that any adjustments which by reason of this subsection (f) are not required to be made shall be carried forward and taken into account in respect any subsequent adjustment. All calculations under this Article XIV shall be made to the nearest cent or to the nearest one-hundredth of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offera share, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined be. Except as provided in subsection subsections (fa) of this Sectionand (b) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company)above, the Conversion Price shall not be reduced so that adjusted for the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness issuance of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be Common Stock at less than either the Current Market Price per share or the current Conversion Price, whether upon exercise of present or future options, the conversion of present or future convertible securities, or otherwise. Anything in this SECTION 14.05 to the contrary notwithstanding, the Company shall be entitled to make such reductions in the Conversion Price, in addition to those required under this SECTION 14.05, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights or warrants to purchase stock or securities, or distribution of other assets (determined other than cash dividends) hereafter made by the Company to the holders of Common Stock shall not be taxable.
(g) Whenever the Conversion Price is adjusted as herein provided, the Company shall promptly (i) file with the Trustee and each office or agency maintained for the purpose of conversion of Debentures as provided in subsection (f) of this Section) SECTION 10.02 an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the Class A common stock facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment, and (ii) mail or cause to be mailed to the Holders of the Debentures at their last addresses as they shall appear on the Purchase Date less the sum Debenture Register a notice of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Dateadjustment.
Appears in 1 contract
Sources: Indenture (Banctec Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall at any time or from time to time (i) pay a dividend or make a distribution (other than a dividend or distribution paid or made to the holder of this Note in the manner provided in Section 4) on the outstanding shares of Common Stock in shares of Class A common stock Common Stock or other equity interests (which, for purposes of this Section 7.4 shall include, without limitation, any dividends or distributions in the form of options, warrants or other rights to holders acquire shares of Class A common stock (Common Stock or any event treated as such for U.S. Federal income tax purposes)other equity interests) of the Company, (ii) make a distribution in subdivide the outstanding shares of Class A common stock to holders Common Stock into a larger number of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)shares of Common Stock, (iii) subdivide its combine the outstanding shares of Class A common stock into a greater number of shares of Class A common stock or (iv) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares of Class A common stockCommon Stock, (iv) issue any equity interest in a reclassification of the shares of Common Stock or (v) pay a dividend or make a distribution on the outstanding shares of Common Stock in shares of Common Stock or other equity interests pursuant to a rights plan, "poison pill" or similar arrangement, then, and in each such case, the Conversion Price in effect immediately prior to such action event shall be adjusted (and any other appropriate actions shall be taken by the Company) so that the holder of this Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which he Common Stock or other securities of the Company that such holder would have owned immediately following such action or would have been entitled to receive upon or by reason of any of the events described above, had the this Note been converted immediately prior theretoto the occurrence of such event. Any An adjustment made pursuant to this subsection (aSection 7.4(a) shall become effective immediately after the record date retroactively (i) in the case of any such dividend or distribution, to a date immediately following the close of business on the record date for the determination of holders of shares of Common Stock entitled to receive such dividend or distribution and shall become effective immediately after the effective date or (ii) in the case of a subdivision any such subdivision, combination or combinationreclassification, to the close of business on the day upon which such corporate action becomes effective.
(b) In case the Company shall at any time or from time to time issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase sell shares of Class A common stock Common Stock (or securities convertible into Class A common stockor exchangeable for shares of Common Stock, or any options, warrants or other rights to acquire shares of Common Stock) (other than (i) options to acquire shares of Common Stock granted on or prior to January 14, 1998 to any officer, director, employee or consultant of the Company or any Subsidiary of the Company or (ii) up to 100,000 shares of Common Stock (subject to adjustment) issued upon the exercise of those certain Stock Purchase Warrants issued by the Company to ▇.▇. ▇▇▇▇▇▇▇ Associates, Inc. on July 7, 1994), at a price per share (or having a conversion price per share) less than either the Current Market Price per share (as determined pursuant to subsection (f) below) of or the Class A common stock on Conversion Price per share then in effect at the record date for determining referred to in the holders following sentence (treating (A) the price per share of any security convertible or exchangeable or exercisable into shares of Common Stock as equal to (i) the sum of the Class A common stock entitled price for such security convertible, exchangeable or exercisable into shares of Common Stock plus any additional consideration payable (without regard to receive any anti-dilution adjustments) upon the conversion, exchange or exercise of such rightssecurity into shares of Common Stock divided by (ii) the number of shares of Common Stock initially underlying such convertible, options exchangeable or warrantsexercisable security and (B) the price per share of any security issued in connection with the settlement or compromise any claim, action, suit, proceeding or dispute or in connection with the satisfaction of any judgment relating to the foregoing as equal to $.01), then, and in each such case, the Conversion Price then in effect shall be adjusted so that the same shall equal the price determined by multiplying dividing the Conversion Price in effect on the day immediately prior to such record date by a fraction (x) the numerator of which the numerator shall be the sum of the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock Common Stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription Common Stock issued or purchase to be issued (or the maximum number into which such convertible or exchangeable securities initially may convert or exchange or for which such options, warrants or other rights initially may be exercised) and (y) the convertible securities so offered are convertible). Such adjustments denominator of which shall become effective immediately after such record date. For be the purposes sum of this subsection (b), the number of shares of Class A common stock at any time Common Stock outstanding shall not include shares held in on such record date plus the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions number of shares of Common Stock that the aggregate consideration for the total number of such Class A common stockadditional shares of Common Stock so issued (or into which such convertible or exchangeable securities may convert or exchange or for which such options, warrants or other rights may be exercised, plus the aggregate amount of any additional consideration initially payable upon conversion, exchange or exercise of such security) would purchase at the greater of the Current Market Price per share or the Conversion Price per share on such record date. The Company Such adjustment shall not issue any rightsbe made whenever such shares of Common Stock, options securities, options, warrants or warrants in respect other rights are issued, and shall become effective retroactively to a date immediately following the close of business on the record date for the determination of holders of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders Common Stock entitled to subscribe for or purchase receive such shares of Class A common stock at less than Common Stock, securities, options, warrants or other rights; provided, however, that the Current Market Price, and in determining determination as to whether an adjustment is required to be made pursuant to this Section 7.4(b) shall only be made upon the aggregate offering price issuance of such shares of Class A common stockCommon Stock or such convertible or exchangeable securities, options, warrants or other rights, and not upon the issuance of the security into which such convertible or exchangeable security converts or exchanges, or the security underlying such option, warrants or other right; provided further, that if any convertible or exchangeable securities, options, warrants or other rights (or any portions thereof) that shall have given rise to an adjustment pursuant to this Section 7.4(b) shall have expired or terminated without the exercise thereof and/or if by reason of the terms of such convertible or exchangeable securities, options, warrants or other rights there shall have been an increase or increases, with the passage of time or otherwise, in the price payable upon the exercise or conversion thereof, then the Conversion Price hereunder shall be taken into account readjusted (but to no greater extent than originally adjusted with respect to the related event) on the basis of (x) eliminating from the computation any consideration received by Company for additional shares of Common Stock corresponding to such rightsconvertible or exchangeable securities, warrants, or options, warrants or other rights as shall have expired or terminated, (y) treating the value additional shares of such considerationCommon Stock, if any, actually issued or issuable pursuant to the previous exercise of such convertible or exchangeable securities, options, warrants or other than cashrights as having been issued for the consideration actually received and receivable therefor and (z) treating any of such convertible or exchangeable securities, options, warrants or other rights that remain outstanding as being subject to exercise or conversion on the basis of such exercise or conversion price as shall be determined by in effect at the Board of Directorstime.
(c) In case the Company shall at any time or from time to time distribute on or with respect to all holders of Class A common stock the shares of capital stock Common Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the resulting or surviving corporation and the shares of Company (other than Class A common stock)Common Stock are not changed or exchanged) cash, evidences of indebtednessindebtedness of the Company or another issuer, cash, rights, options securities of the Company or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) another issuer or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) belowRegular Distributions, (ii) dividends and distributions described paid or made to the holder of this Note in subsection (a) above the manner provided in Section 4 and (iii) distributions dividends payable in connection with shares of Common Stock for which adjustment is made under Section 7.4(a)) or rights or warrants to subscribe for or purchase securities of the consolidationCompany (excluding those referred to in Section 7.4(b)) then, merger or transfer of assets covered by Section 9.11), then and in each such case case, the Conversion Price then in effect shall be adjusted so that the same shall equal the price determined by multiplying dividing the Conversion Price in effect immediately prior to the date of such distribution by a fraction (x) the numerator of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock shares of Common Stock on the record date mentioned referred to below less and (y) the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and denominator of which the denominator shall be such Current Market Price of the Class A common stockshares of Common Stock less the amount that a willing buyer would pay a willing seller in an arm's-length transaction at such time (as determined in good faith by the Board of Directors of the Company) for the portion of the cash, evidences of indebtedness, securities or other assets so distributed or of such subscription rights or warrants applicable to one Unit (but such denominator not to be less than one); provided, however, that no adjustment shall be made with respect to any distribution of rights to purchase securities of the Company if the holder of this Note would otherwise be entitled to receive such rights upon conversion at any time of this Note into shares of Common Stock unless such rights are subsequently redeemed by the Company, in which case such redemption shall be treated for purposes of this Section 7.4(c) as a distribution on the shares of Common Stock. Such adjustment shall be made whenever any such distribution is made; provided, however, that in the case of a Cash Distribution (as defined in Section 7.4(f)) such adjustment shall be calculated not later than 45 days following the last day of the Calculation Period (as defined in Section 7.4(f)). The adjustment shall become effective retroactively to a date immediately after following the close of business on the record date for the determination of the holders of Class A common stock shares of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case the Company shall, by dividend or otherwise, at any time make a distribution or from time to all holders time shall take any action affecting the shares of Common Stock or its Class A common stock exclusively other equity interests, if any, other than an action described in cash (including any distributions of cash out of current Section 7.4(a) through Section 7.4(c), inclusive, or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount thatSection 7.8, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") then, and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company)each such case, the Conversion Price shall be reduced so that adjusted in such manner and at such time as the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness Board of Directors of the Conversion Price reduction contemplated by this subsection Company in good faith determines to be equitable in the circumstances (d) by such determination to be evidenced in a fraction resolution, a certified copy of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing mailed to the sum holders of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record DateNotes).
(e) In case a tender offer Notwithstanding anything herein to the contrary, no adjustment under this Section 7.4 need be made to the Conversion Price unless such adjustment would require an increase or other negotiated transaction made by Company or any Subsidiary decrease of Company for all or any portion at least 1% of the Class A common stock Conversion Price then in effect. Any lesser adjustment shall be consummatedcarried forward and shall be made at the time of and together with the next subsequent adjustment, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Paymentwhich, together with any adjustment or adjustments so carried forward, shall amount to an increase or decrease of at least 1% of such Conversion Price. Any adjustment to the sum Conversion Price carried forward and not theretofore made shall be made immediately prior to the conversion of this Note pursuant hereto.
(xf) For purposes of Section 7.4(c), a "Regular Distribution" shall mean a distribution of cash or cash equivalents on or with respect to the aggregate Common Stock (a "Cash Distribution") in an amount that, when added to the amount of any distributions, by dividend or otherwise, to all holders other Cash Distributions made during the 12-month period ending on the last day of the Class A common stock fiscal quarter of the Company in which such Cash Distribution is made (or, if this Note has been outstanding for a period shorter than 12 months, the period from the first day of the fiscal quarter in cash which this Note was issued to the last day of such fiscal quarter) (including any distributions of cash out of current or retained earnings of Company) within the 12 months "Calculation Period"), does not exceed, on the Business Day immediately preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offerdistribution, as the case may be either (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (ci) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/21% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock Common Stock or (ii) 12.5% of the net income of the Company (calculated in accordance with generally accepted accounting principles consistently applied) for the 12-month period ending on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness last day of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) immediately preceding fiscal quarter of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase DateCompany.
Appears in 1 contract
Sources: Note Purchase Agreement (Wellcare Management Group Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment adjusted from time to time during the period stated in paragraph 8 of the Securities as follows:
(a) In case the Company shall hereafter (i) pay a dividend or make a distribution on its Common Stock in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock or shares, (iviii) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of Class A common stockcapital stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of this Note any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common Common Stock or other capital stock of the Company which he would have owned immediately following such action had the Note such Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification. If, as a result of an adjustment made pursuant to this subsection (a) the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of capital stock or shares of Common Stock and other capital stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in an Officers' Certificate filed with the Trustee and with any Conversion Agent) shall determine in good faith the allocation of the adjusted Conversion Price between or among shares of such classes of capital stock or shares of Common Stock and other capital stock.
(b) In case the Company shall hereafter issue rights, warrants or options or warrants to all holders of Class A common stock its outstanding shares of Common Stock generally entitling them to subscribe for or purchase shares of Class A common stock Common Stock (or securities convertible into Class A common stockor exchangeable for Common Stock) at a price per share (or having a conversion or exchange price per share) less than the Current Market Price current market price per share (as determined pursuant to subsection (fe) belowof this Section 5.04) of the Class A common stock Common Stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrantsmentioned below, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock Common Stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock Common Stock which the aggregate offering price of the total number of shares of Class A common stock Common Stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below)current market price, and of which the denominator shall be the number of shares of Class A common stock Common Stock outstanding on such record date plus the number of additional shares of Class A common stock so Common Stock offered for subscription or purchase (or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall be made successively whenever any such rights or warrants are distributed, and shall become effective immediately after the record date for the determination of stockholders entitled to receive such record daterights, warrants or options. For If at the purposes end of this subsection the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon the number of additional shares of Common Stock actually issued (b), or the number of shares of Class A common stock at any time outstanding shall not include shares held in Common Stock issuable upon conversion of convertible securities or the treasury exchange of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directorsexchangeable securities actually issued).
(c) In case the Company shall hereafter distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), its outstanding Common Stock generally evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) cash or other assets (including securities of Persons other than Company securities, but excluding (i) those dividends, rights, warrants, options and distributions referred to above and excluding dividends or and distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11cash), then in each such case the Conversion Price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction the numerator of which the numerator shall be the Current Market Price current market price per share (determined as provided in subsection (fe) belowof this Section 5.04) of the Class A common stock Common Stock on the record date mentioned below less the then fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and shall be described in a board resolutionan Officers' Certificate filed with the Trustee and with any Conversion Agent) of the portion of the such evidences of indebtedness, shares of capital stock, indebtedness or assets (but not cash, rights, options, warrants or other assets ) so distributed to the holder of one share of Common Stock or of such subscription rights or warrants applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)Common Stock, and of which the denominator shall be such Current Market Price current market price per share of the Class A common stockCommon Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock stockholders entitled to receive such distribution. Notwithstanding the foregoing, In any case in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of which this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note is applicable, subsection (or any portion thereofb) after the record date for such distribution and prior to the expiration or redemption of the Rights shall not be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rightsapplicable.
(d) In case the Company shall, (i) by dividend or otherwise, at any time make a distribution distribute to all holders of its Class A common stock exclusively in Common Stock cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part portions of a distribution requiring a Conversion Price adjustment pursuant distributions referred to subsection in (c) of this Sectionabove or cash distribution upon a merger or consolidation to which Section 5.10 applies) in an aggregate amount that, combined together with (a) all other such all-cash distributions made within the sum preceding 12 months in respect to which no adjustment has been made and (b) any cash and their fair market of other consideration paid or payable in respect of any tender offers by the Company for Common Stock concluding within the preceding 12 months in respect of which no adjustment has been made, exceeds 12.5% of the Company's market capitalization (xdefined as being the product of the current market price of the Common Stock times the number of shares of Common Stock then outstanding) on the record date for such distribution (as determined by the Board of Directors, whose determination shall be described in an Officers' Certificate filed with the Trustee and any Conversion Agent), and or (ii) purchase Common Stock pursuant to a tender offer made by the Company or any of its subsidiaries which involves an aggregate consideration that together with (a) any cash and the fair market value of any other consideration paid or payable in any other tender offer by the Company or any of its subsidiaries of Common Stock expiring within the 12 months preceding the expiration of such tender offer in respect of which no adjustment has been made (as determined by the Board of Directors, whose determination shall be described in an Officers' Certificate filed with the Trustee and any Conversion Agent) and (b) the aggregate amount of any other such all-cash distributions made exclusively referred to in cash (i) above to all holders of Class A common stock Common Stock within the 12 months preceding the date fixed for determining the stockholders entitled to expiration of such distribution (the "Distribution Record Date") and tender offer in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has adjustments have been made, exceeds 12 1/212.5% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock Company's market capitalization on the Distribution Record Date multiplied by the number expiration of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company)such tender offer, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such the Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in subsection (fe) of this SectionSection 5.04) of the Class A common stock Common Stock on the Distribution Record Date date of such effectiveness less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) distributed applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) Common Stock and the denominator shall be such Current Market Price current market price per share of the Common Stock (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Dateaforesaid), such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Datedate fixed for the payment of such distribution.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of For the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount purpose of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash computation under subsections (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"b), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or and (d) of this Section 5.04 or under Section 5.03, the "current market price" per share of Common Stock on any record date shall be deemed to be the average of the daily closing prices for the five consecutive trading days immediately preceding the date in question. The closing price for each day shall be the last sale price regular way or, in case no such sale takes place on such day, the average of the closing bid and asked prices regular way, in either case on the American Stock Exchange, or, if the shares of Common Stock are not listed or admitted to trading on such Exchange, on the principal national securities exchange on which the shares are listed or admitted to trading, or if they are not listed or admitted to trading on any national securities exchange, on the Nasdaq National Market System (the NMS") or any comparable system, or if the Common Stock is not quoted on the NMS or a comparable system, the closing bid and asked prices as furnished by any member of the National Association of Securities Dealers, Inc. selected from time to time by the Company for that purpose.
(f) In any case in which this subsection Section 5.04 shall require that an adjustment be made immediately following a record date, the Company may elect to defer (ebut only until five Business Days following the filing by the Company with the Trustee and any Conversion Agent of the certificate of Independent Public Accountants described in Section 5.05) has been made plus (y) issuing to the aggregate amount of all Excess Payments in respect Holder of any other tender offers or other negotiated transactions by Company or any Security converted after such record date the shares of its Subsidiaries for Class A common stock concluded within Common Stock issuable upon such conversion over and above the 12 months preceding shares of Common Stock issuable upon such conversion on the Purchase Date and in respect basis of which no the Conversion Price prior to adjustment.
(g) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% of such price; provided however, that any adjustments which by reason of this subsection (g) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 5.04 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. Anything in this Section 5.04 to the contrary notwithstanding, the Company shall be entitled to make such reductions in the Conversion Price, in addition to those required by this Section 5.04, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock or securities, or distribution of securities convertible into or exchangeable for stock hereafter made by the Company to its stockholders shall not be taxable; provided that in no event shall such Conversion Price be less than the par value of the Common Stock at the time such reduction is made. No adjustment to the Conversion Price pursuant to this Indenture shall reduce the Conversion Price below the then existing par value per share of Common Stock. The Company hereby covenants not to take any action to increase the par value per share of the Common Stock. No adjustment in the Conversion Price need be made for rights to purchase shares of Common Stock or issuances of Common Stock pursuant to a Company plan for reinvestment of dividends or interest.
(h) In the event that at any time as a result of an adjustment made pursuant to subsection (c) or (da) of this Section or this subsection (e) has been made5.04, exceeds 12 1/2% the Holder of any Securities thereafter surrendered for conversion shall become entitled to receive any shares of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of Company other than shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company)Common Stock, thereafter the Conversion Price of such other shares so receivable upon conversion of any Security shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price subject to adjustment from time to time in effect immediately prior a manner and on terms as nearly equivalent as practicable to the effectiveness of provisions with respect to Common Stock contained in this Article Five.
(i) In addition to the foregoing adjustments, the Company will be permitted to make such reduction in the Conversion Price as it considers to be advisable in order that any event treated for federal income tax purposes as a dividend or distribution of stock or stock rights will not be taxable to the holders of the Common Stock. Any such reduction contemplated by this subsection (e) by a fraction of which the numerator shall be described in an Officers' Certificate filed with the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash Trustee and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Dateany Conversion Agent.
Appears in 1 contract
Sources: Indenture (Trans Lux Corp)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case Company the Issuer shall (i1) make or pay a dividend (or other distribution) in shares of Class A common stock to holders Common Stock on any class of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Capital Stock of the Issuer, (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii2) subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock or (iv3) combine or reclassify its outstanding shares of Class A common stock Common Stock into a smaller number of shares of Class A common stockshares, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of this Note any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which Common Stock that he would have owned immediately following such action had the Note such Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (i) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case Company the Issuer shall issue rights, options or warrants to all or substantially all holders of Class A common stock Common Stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) Common Stock at a price per share (or having a conversion price per share) less than the Current Market Price then current market price per share of the Common Stock (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrantsmentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by multiplying multiplying:
(i) the Conversion Price in effect immediately prior to the date of issuance of such record date rights or warrants by a fraction fraction, of which which
(ii) the numerator shall be (A) the number of shares of Class A common stock Common Stock outstanding as on the date of the close issuance of business on such record date rights, options or warrants, immediately prior to such issuance, plus (B) the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price current market price (as determined pursuant to subsection (f) belowby multiplying such total number of shares by the exercise price of such rights, options or warrants and dividing the product so obtained by such current market price), and of which which
(iii) the denominator shall be (A) the number of shares of Class A common stock Common Stock outstanding on the date of issuance of such record date rights, options or warrants, immediately prior to such issuance, plus (B) the number of additional shares of Class A common stock Common Stock which are so offered for subscription or purchase (or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall become effective immediately after such record date. For the purposes of this immediately, except as provided in subsection (b)i) below, after the number record date for the determination of shares of Class A common stock at holders entitled to receive such rights, options or warrants; provided, however, that if any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined issued by the Board Issuer as described in this subsection (b) are only exercisable upon the occurrence of Directorscertain triggering events relating to control and provided for in shareholder rights plans, then the Conversion Price will not be adjusted as provided in this subsection (b) until such triggering events occur.
(c) In case Company the Issuer or any Subsidiary of the Issuer shall distribute to all or substantially holders of Class A common stock shares Common Stock, any of capital stock of Company (other than Class A common stock)its assets, evidences of indebtedness, cash, rights, options cash or warrants entitling the holders thereof to subscribe for other assets or purchase securities (shares of Capital Stock other than rightsCommon Stock (including securities, options but other than (x) dividends or warrants described distributions exclusively in cash or (y) any dividend or distribution for which an adjustment is required to be made in accordance with subsection (a) or (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market then current market price per share of the Common Stock (determined as provided in subsection (f) below) on the record date mentioned below less the then fair market value (as reasonably determined in good faith by the Board of Directors of the Issuer) of the portion of the assets so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (i) below, after the record date for the determination of stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the fair market value of the assets, evidences of indebtedness or other securities so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such fair market value by less than $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (c) and, to the extent applicable, the provisions of subsection (k) shall apply to such distribution.
(d) In case the Issuer or any Subsidiary of the Issuer shall make any distribution consisting exclusively of cash (excluding any cash portion of distributions for which an adjustment is required to be made in accordance with (c) above, or cash distributed upon a merger or consolidation to which Section 14.6 applies) to all or substantially all holders of Common Stock in an aggregate amount that, combined together with (i) all other such all-cash distributions made within the then preceding 12 months in respect of which no adjustment has been made and (ii) any cash and the fair market value of other consideration paid or payable in respect of any tender or exchange offer by the Issuer or any of its Subsidiaries for Common Stock concluded within the preceding 12 months in respect of which no adjustment has been made, exceeds 15% of the Issuer's market capitalization (defined as being the product of the then current market price of the Common Stock (determined as provided in subsection (f) below) times the number of shares of Common Stock then outstanding) on the record date of such distribution, then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the then current market price per share of the Common Stock on such record date less the amount of the cash so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (h) below, after the record date for the determination of stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the cash so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such amount of cash by less than $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (d), and, to the extent applicable, the provisions of subsection (k) shall apply to such distribution.
(e) In case there shall be completed a tender or exchange offer made by the Issuer or any Subsidiary of the Issuer for all or any portion of the Common Stock (any such tender or exchange offer being referred to as an "Offer") that involves an aggregate consideration having a fair market value as of the expiration of such Offer (the "Expiration Time") that, together with (i) any cash and the fair market value of any other consideration payable in respect of any other Offer, as of the expiration of such other Offer, expiring within the 12 months preceding the expiration of such Offer and in respect for which no Conversion Price adjustment pursuant to this subsection (e) has been made and (ii) the aggregate amount of any all-cash distributions referred to in subsection (d) of this Section 14.5 to all holders of Common Stock within the 12 months preceding the expiration of such Offer for which no conversion price adjustment pursuant to such subsection (d) has been made, exceeds 15% of the product of the then current market price per share (determined as provided in subsection (f) below) of the Class A common stock Common Stock on the record date mentioned below less Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time, the Conversion Price shall be reduced by multiplying such Conversion Price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be (i) the product of the then current market price per share (determined as provided in subsection (f) below) of the Common Stock on the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time minus (ii) the fair market value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the Offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted being referred to as the "Purchased Shares") and the denominator shall be the product of (i) such record date current market price per share on the Expiration Time times (as ii) such number of outstanding shares on the Expiration Time less the number of Purchased Shares, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. For purposes of this subsection (e), the fair market value of any consideration with respect to an Offer shall be reasonably determined in good faith by the Board of Directors, whose determination shall be conclusive evidence Directors of such fair market value the Issuer and described in a board resolutionBoard Resolution.
(f) For the purpose of any computation under subsections (b), (c), (d) and (e) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the portion Last Sale Prices of a share of Common Stock for the five consecutive Trading Days selected by the Issuer commencing not more than 20 Trading Days before, and ending not later than, the earlier of the evidences date in question and the date before the " 'ex' date," with respect to the issuance, distribution or Offer requiring such computation. If on any such Trading Day the Common Stock is not quoted by any organization referred to in the definition of indebtednessLast Sale Price in Section 14.3 hereof, the fair value of the Common Stock on such day, as reasonably determined in good faith by the Board of Directors of the Issuer, shall be used. For purposes of this paragraph, the term " 'ex' date," when used with respect to any issuance, distribution or payments with respect to an Offer, means the first date on which the Common Stock trades regular way on the New York Stock Exchange (or if not listed or admitted to trading thereon, then on the principal national securities exchange on which the Common Stock is listed or admitted to trading) without the right to receive such issuance, distribution or Offer.
(g) In addition to the foregoing adjustments in subsections (a), (b), (c), (d) and (e) above, the Issuer will be permitted to make such reductions in the Conversion Price as it considers to be advisable in order that any event treated for Federal income tax purposes as a dividend of stock or stock rights will not be taxable to the holders of the shares of capital stockCommon Stock.
(h) In the event the Issuer elects to make such a reduction in the Conversion Price, cashthe Issuer will comply with the requirements of Rule 14e-1 of the Exchange Act and any other Federal and state laws and regulations thereunder if and to the extent that such laws and regulations are applicable in connection with the reduction of the Conversion Price of the Notes; provided that any provisions of this Indenture which conflict with such laws shall be deemed to be superseded by the provisions of such laws.
(i) In any case in which this Section 14.5 shall require that an adjustment (including by reason of the last sentence of subsection (a) or (c) above) be made immediately following a record date, rightsthe Issuer may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), optionsin which case the Issuer shall, warrants with respect to any Security converted after such record date and on and before such adjustment shall have become effective (i) defer paying any Cash payment pursuant to Section 14.3 hereof or issuing to the Holder of such Security the number of shares of Common Stock and other Capital Stock of the Issuer (or other assets so distributed applicable to one share of Class A common stock (determined on the basis or securities) issuable upon such conversion in excess of the number of shares of Common Stock and other Capital Stock of the Class A common stock outstanding Issuer issuable thereupon only on the record date)basis of the Conversion Price prior to adjustment, and of which the denominator shall be (ii) not later than five Business Days after such Current Market Price of the Class A common stock. Such adjustment shall have become effective immediately after effective, pay to such Holder the record date for appropriate Cash payment pursuant to Section 14.3 hereof and issue to such Holder the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock Common Stock and other Capital Stock of the Issuer (or other assets or securities) issuable on such conversion.
(j) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1.0% of the Conversion Price; provided, that any adjustments which by reason of this subsection (j) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article Fourteen shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be. Whenever the Conversion Price is adjusted as herein provided, the Issuer shall promptly (i) file with the Trustee and each conversion agent an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment, and (ii) mail or cause to be mailed a notice of such adjustment to each holder of Securities at his address as the same appears on the registry books of the Issuer.
(k) In the event that the Issuer distributes rights (including rights to distributions referred to by paragraphs (c) and (d) of this Section 14.5 to the extent this paragraph (k) applies thereto) or warrants (other than rights, options or warrants those referred to in subsection (b) above) ("Rights") pro rata to all holders of Class A common stockCommon Stock, Company mayso long as any such rights or warrants have not expired or been redeemed by the Issuer, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 Issuer shall make proper provision so that the holder Holder of the any Note who converts the Note (or any portion thereof) after the record date surrendered for such distribution and prior to the expiration or redemption of the Rights shall conversion will be entitled to receive upon such conversion, in addition to the shares of Class A common stock Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights rights or warrants to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights rights or warrants of separate certificates evidencing such Rights rights or warrants (the "Distribution Date"), the same number of Rights rights or warrants to which a holder of a number of shares of Class A common stock Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; rights or warrants, and (ii) if such conversion occurs after the such Distribution Date, the same number of Rights rights or warrants to which a holder of the number of shares of Class A common stock Common Stock into which the principal amount of the such Note so converted was convertible immediately prior to the such Distribution Date would have been entitled on the such Distribution Date in accordance with the terms and provisions of and applicable to the Rightsrights or warrants.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price in effect at any time shall be subject to adjustment from time to time as follows:
(a) In case Company the Issuer shall (i) pay a dividend in or make a distribution of shares of Class A common stock to holders of Class A common its capital stock (whether shares of Common Stock or of capital stock of any event treated as such for U.S. Federal income tax purposesother class), (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock into a greater number of shares of Class A common stock or Common Stock, (iviii) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares or (iv) issue by reclassification of Class A common stockits shares of Common Stock any shares of capital stock of the Issuer, the Conversion Price conversion price in effect immediately prior to such action shall be adjusted by the Issuer so that the holder of this Note any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common capital stock of the Issuer which he would have owned or been entitled to receive immediately following such action had the Note such Security been converted exchanged immediately prior thereto. Any An adjustment made pursuant to this subsection paragraph (a) shall become effective retroactively immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification. If, as a result of an adjustment made pursuant to this paragraph (a), the holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of capital stock of the Issuer, the Board of Directors (whose determination shall be conclusive) shall determine the allocation of the adjusted exchange price between or among shares of such classes of capital stock.
(b) In case Company the Issuer shall issue rights, options rights or warrants to all holders of Class A common stock its Common Stock entitling them (for a period expiring within 45 days after the record date mentioned below) to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) Common Stock at a price per share (or having a conversion price per share) less than the Current Market Price then current market price per share (as determined pursuant to subsection paragraph (fd) below) of the Class A common stock on the record date for determining mentioned below, the holders conversion price of the Class A common stock entitled to receive such rights, options or warrants, the Conversion Price Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price conversion price in effect immediately prior to the date of issuance of such record date rights or warrants by a fraction of which the numerator shall be the number of shares of Class A common stock Common Stock outstanding as on the date of the close issuance of business on such record date rights or warrants plus the number of shares of Class A common stock Common Stock which the aggregate offering price of the total number of shares of Class A common stock Common Stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), current market price and of which the denominator shall be the number of shares of Class A common stock Common Stock outstanding on the date of issuance of such record date rights or warrants plus the number of additional shares of Class A common stock so Common Stock offered for subscription or purchase (or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall become effective retroactively immediately after the record date for the determination of stockholders entitled to receive such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options rights or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case Company the Issuer shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), its Common Stock evidences of indebtedness, cash, rights, options its indebtedness or assets (excluding any cash dividend paid from retained earnings of the Issuer) or rights or warrants entitling the holders thereof to subscribe for or purchase to securities of the Issuer (other than rights, options or warrants described excluding those referred to in subsection Paragraph (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price conversion price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price conversion price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in subsection paragraph (fd) below) of the Class A common stock on the record date mentioned below Common Stock less the then fair market value on such record date (as determined by the Board of DirectorsDirectors of the Issuer, whose determination shall be conclusive evidence of such fair market value and described in a board resolutionconclusive) of the portion of the assets or evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets indebtedness so distributed or of such subscription rights or warrants applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)Common Stock, and of which the denominator shall be such Current Market Price current market price per share of the Class A common stockCommon Stock on the record date mentioned below. Such adjustment shall become effective retroactively immediately after the record date for the determination of the holders of Class A common stock stockholders entitled to receive such distribution.
(d) For the purpose of any computation under paragraphs (b) and (c) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices for 10 consecutive Business Days commencing 10 Business Days before the day in question. Notwithstanding The closing price for each day shall be the foregoinglast reported sales price regular way on the New York Stock Exchange ("NYSE"), or, if not reported for the NYSE, on the Composite Tape, or, in case Company no such reported sale takes place on such day, the average of the reported closing bid and asked quotations on the NYSE, or, if the Common Stock is not listed on the NYSE or no such quotations are available, the average of the high bid and low asked quotations in the over-the-counter market as reported by the National Quotation Bureau, Incorporated, or similar organization, or, if no such quotations are available, the fair market price as determined by the Issuer (whose determination shall distribute rightsbe conclusive).
(e) In any case in which this Section 13.4 shall require that an adjustment be made retroactively immediately following a record date, options or warrants the Issuer may elect to subscribe for additional shares defer (but only until five Business Days following the mailing by the Issuer of Companythe Officer's capital stock Certificate described in paragraph (other than rights, options or warrants referred j) below) issuing to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) share converted after the such record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to (i) the shares of Class A common Common Stock and other capital stock of the Issuer issuable upon such conversion over and above (ii) the "Conversion Shares"), a number shares of Rights Common Stock and other capital stock of the Issuer issuable upon such conversion only on the basis of the conversion price prior to be determined as follows: adjustment.
(f) In the case of either (i) if such conversion occurs on any consolidation or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights merger to which the Issuer is a party, other than a consolidation or a merger in which the Issuer is a continuing corporation and which does not result in any reclassification of, or change (other than a change in par value or from par value to no par value or from no par value to par value, or as a result of a subdivision or combination) in, outstanding shares of the Common Stock, or (ii) any sale or conveyance to another corporation of the property of the Issuer as an entirety or substantially as an entirety, then the holder of a number each Outstanding Security shall have the right to exchange such Security into the kind and amount of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of and other securities and property (including cash) receivable upon such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Dateconsolidation, the same number of Rights to which merger, sale or conveyance by a holder of the number of shares of Class A common stock Common Stock issuable upon conversion of such Security immediately prior to such consolidation, merger, sale or conveyance, subject to adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Section 13.4 assuming, in the case of any consolidation, merger, sale or conveyance, such holder of Common Stock of the Issuer (i) is not a Person with or into which the principal amount of Issuer consolidated or merged or which merged into the Note so converted was convertible immediately prior Issuer or to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being sale or conveyance was made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Dateconstituent Person"), or an Affiliate of a constituent Person and (ii) failed to exercise his rights of election, if any, as to which no adjustment in the Conversion Price pursuant to subsection (c) kind or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect shares of any stock and other tender offers securities and property (including cash) receivable upon such consolidation, merger, sale or conveyance (provided that if the kind or amount of shares of stock and other negotiated transactions securities and property (including cash) receivable upon such consolidation, merger, sale or conveyance is not the same for each share of Common Stock of the Issuer held immediately prior to such consolidation, merger, sale or conveyance by Company others than a constituent Person or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date an Affiliate thereof and in respect of which no such rights of election shall not have been exercised ("non-electing share"), then for the purpose of this Section 13.4 the kind and amount of shares of stock and other securities and property (including cash) receivable upon such consolidation, merger, sale or conveyance by each non-electing share shall be deemed to be the kind and amount so receivable per share by a plurality of the non-electing shares). The provisions of this paragraph (f) shall similarly apply to successive consolidations, mergers, sales or conveyances.
(g) No adjustment in the Conversion Price pursuant conversion price shall be required unless such adjustment would require an increase or decrease of at least 1% in such price; provided, however, that any adjustments which by reason of this paragraph (g) are not required to subsection (c) or (d) be made shall be carried forward and taken into account in any subsequent adjustment; and, provided further that adjustment shall be required and made in accordance with the provisions of this Section or 13.4 (other than this subsection paragraph (eg)) has been made, exceeds 12 1/2% not later than such time as may be required in order to preserve the tax-free nature of a distribution to the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number holders of shares of Class A common Common Stock. All calculations under this Section 13.4 shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be. Anything in this Section 13.4 to the contrary notwithstanding, the Issuer shall be permitted to make such reductions in the conversion price in addition to those required by this Section 13.4 as it in its discretion shall consider to be advisable in order that any stock outstanding on dividends, subdivision of shares, distribution of rights to purchase stock or securities, or distribution of securities convertible into or exchangeable for stock hereafter made by the Purchase Date Issuer to its stockholders shall not be taxable to the holders of the Common Stock.
(including h) In the event that at any tendered shares but excluding time as a result of an adjustment made pursuant to paragraph (a) above, the holder of any Security thereafter surrendered for conversion shall become entitled to receive any shares held in of the treasury Issuer other than shares of Company)its Common Stock, thereafter the Conversion Price conversion price of such other shares so receivable upon conversion of any Security shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price subject to adjustment from time to time in effect immediately prior a manner and on terms as nearly equivalent as practicable to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable provisions with respect to outstanding Common Stock contained in paragraphs (a) through (g) above, and the provisions of Sections 13.1 through 13.3 and Sections 13.5 through 13.9 with respect to the Common Stock shall apply on like or similar terms to any such other shares.
(i) Before taking any action which would cause an adjustment reducing the then equivalent conversion price to be below the then par value of the Common Stock, the Issuer will take any corporate action which may, in the opinion of its counsel, be necessary in order that the Issuer may validly and legally issue fully paid and non-assessable shares of Class A common stock within such 12 months (including, without limitation, Common Stock at the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined conversion price as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Dateso adjusted.
Appears in 1 contract
Sources: Indenture (Chubb Capital Trust Iii)
Adjustment of Conversion Price. The Conversion Price shall be as specified in Section 9 of the form of Note, subject to adjustment as provided below. The Conversion Price shall be adjusted from time to time by the Company as follows:
(a) In case Company the Company, after the date of this Indenture, shall (i) pay a dividend or make a distribution on its Common Stock in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock or shares, (iviii) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of Class A common stockCapital Stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of this any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which he Common Stock or other Capital Stock of the Company that it would have owned or been entitled to receive immediately following such action had the such Note been converted immediately prior theretoto the occurrence of such event. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date date, in the case of a dividend or distribution and shall become effective distribution, or immediately after the effective date date, in the case of a subdivision subdivision, combination or combinationreclassification. If, as a result of an adjustment made pursuant to this subsection (a), the holder of any Note thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of Capital Stock or shares of Common Stock and other Capital Stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed by the Company with the Trustee and with any Conversion Agent as soon as practicable) shall determine the allocation of the adjusted Conversion Price between or among shares of such classes of Capital Stock or shares of Common Stock and other Capital Stock.
(b) In case Company the Company, after the date of this Indenture, shall issue rights, warrants or options to all or warrants to substantially all holders of Class A common stock its outstanding shares of Common Stock entitling them (for a period expiring within 45 days after the date fixed for determination for shareholders entitled to receive such rights, warrants or options) to subscribe for or purchase shares of Class A common stock Common Stock (or securities convertible into Class A common stockCommon Stock) at a price per share (or having a conversion price per share) less than the Current Market Price current market price per share (as determined pursuant to subsection (fh) belowof this Section 5.4) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrantsCommon Stock, the Conversion Price in effect immediately prior thereto shall be adjusted so that the same it shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of issuance of such record date rights, warrants or options by a fraction of which the numerator shall be the number of shares of Class A common stock Common Stock outstanding as on the date of the close issuance of business on such record date rights, warrants or options (immediately prior to such issuance), plus the number of shares of Class A common stock Common Stock which the aggregate offering price of the total number of shares of Class A common stock Common Stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offeredoffered for subscription or purchase) would purchase at such Current Market Price (as determined pursuant to subsection (f) below)current market price, and of which the denominator shall be the number of shares of Class A common stock Common Stock outstanding on the date of issuance of such record date rights, warrants or options (immediately prior to such issuance) plus the number of additional shares of Class A common stock Common Stock so offered for subscription or purchase (or into which the convertible securities so offered for subscription or purchase are convertible). Such adjustments adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after the record date for the determination of stockholders entitled to receive such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options warrants or warrants in respect of shares of Class A common stock held in the treasury of Companyoptions. In determining whether any rights, warrants or options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock Common Stock (or securities convertible into Common Stock) at less than the Current Market Pricesuch current market price, and in determining the aggregate offering price of such shares of Class A common stockCommon Stock (or conversion price of such convertible securities), there shall be taken into account any consideration received by the Company for such rights, warrants, warrants or optionsoptions (and for such convertible securities), the value of such consideration, if any, other than cash, to be determined by the Board of DirectorsDirectors (whose determination shall be conclusive and shall be described in a certificate filed with the Trustee and with any Conversion Agent by the Company as soon as practicable). If at the end of the period during which such warrants, rights or options are exercisable not all such warrants, rights or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based on the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued).
(c) In case Company the Company, after the date of this Indenture, shall distribute to all or substantially all holders of Class A common stock its outstanding Common Stock any shares of capital stock of Company Capital Stock (other than Class A common stockCommon Stock), evidences of indebtedness, cash, its indebtedness or assets (excluding dividends payable exclusively in cash and any issuance of Capital Stock pursuant to reclassifications for which adjustment is required pursuant to subsection (a) of this Section 5.4) or rights, warrants or options or warrants entitling the holders thereof to subscribe for or purchase securities Capital Stock of the Company (other than rights, options or warrants described excluding those referred to in subsection (b) aboveof this Section 5.4) entitling them to subscribe for or other assets purchase Capital Stock at a price per share less than the fair market value of such Capital Stock (including securities as determined by the Board of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as Directors, whose determination shall be conclusive and described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11a Board Resolution), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the record date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per share (as determined as provided in pursuant to subsection (fh) belowof this Section 5.4) of the Class A common stock on the record date mentioned below Common Stock less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and shall be described in a board resolutioncertificate filed with the Trustee and with any Conversion Agent by the Company as soon as practicable) of the portion of the Capital Stock or the evidences of indebtedness, shares indebtedness or the assets so distributed to the holder of capital stock, cash, one share of Common Stock or of such subscription rights, options, warrants or other assets so distributed options applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), Common Stock and of which the denominator shall be such Current Market Price current market price per share of the Class A common stockCommon Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock stockholders entitled to receive such distribution. If at the end of the period during which warrants, rights or options described in this subsection (c) are exercisable not all such warrants, rights or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based on the number of warrants, rights or options actually exercised. Notwithstanding the foregoing, in case Company shall distribute the event that the fair market value of the Capital Stock, evidences of indebtedness, assets, subscription rights, warrants or options so distributed exceeds the current market price per share of Common Stock, or warrants to subscribe for additional shares of Company's capital stock (other such current market price exceeds such fair market value by less than rights$0.10 per share, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, the Company may, in lieu of making any an adjustment in the Conversion Price pursuant to the foregoing provisions of this subsection (c) of Section 9.6 ), make proper adequate provision so that the holder of the Note each Noteholder who converts the such Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall will be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable Common Stock, the amount of Capital Stock, evidences of indebtedness, assets, subscription rights, warrants or options such Noteholder would have received had such Note been converted immediately prior to the record date for such distribution.
(d) Notwithstanding anything in subsection (b) or (c) of this Section 5.4 to the contrary, with respect to any rights, warrants or options covered by subsection (b) or (c) of this Section 5.4, if such rights, warrants or options are only exercisable upon the occurrence of certain triggering events, then for purposes of this Section 5.4 such conversion rights, warrants or options shall not be deemed issued or distributed, and any adjustment to the Conversion Price required by subsection (b) or (c) of this Section 5.4 shall not be made until such triggering events occur and such rights, warrants or options become exercisable.
(e) In case the "Conversion Shares")Company, a number after the date of Rights to be determined as follows: this Indenture, shall (i) if such conversion occurs issue shares of its Common Stock (excluding those issuances referred to in subsection (a) or (b) to this Section 5.4) at a price per share less than the current market price per share (as determined pursuant to subsection (h) of this Section 5.4) on or prior to the date for the distribution to Company fixes the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time offering price of such conversion in accordance with the terms and provisions of and applicable to the Rights; and additional shares or (ii) if issue any options, warrants or other securities convertible into or exchangeable or exercisable for Common Stock (such conversion occurs after options, warrants or other securities being collectively referred to herein as "Equity Interests") for a consideration per share of Common Stock initially deliverable upon conversion, exchange or exercise of such securities less than the Distribution Datecurrent market price per share (as determined pursuant to subsection (h) of this Section 5.4) then, in either case, the same number Conversion Price shall be reduced immediately thereafter so that it shall equal the price determined by multiplying such Conversion Price in effect immediately prior thereto by a fraction of Rights to which a holder of the numerator shall be the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible Common Stock outstanding immediately prior to the Distribution Date issuance of such additional shares plus the number of shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so offered, or, in the case of clause (ii) above, the aggregate consideration for the issuance of such Equity Interests, would have purchase at the current market price and the denominator shall be the number of shares of Common Stock that would be outstanding immediately after the issuance of such additional shares, or, in the case of clause (ii) above, such number of outstanding shares plus the maximum number of shares of Common Stock deliverable upon conversion or in exchange for or upon exercise of such Equity Interests at the initial conversion, exchange or exercise price. Such adjustment shall be made successively whenever such an issuance is made. This subsection (e) does not apply to:
(1) any transaction described in subsections (a), (b) or (c) of this Section 5.4; or
(2) the issuance of the Notes or the issuance of Common Stock upon conversion of the Notes; or
(3) the issuance of Common Stock upon (i) the exercise of any Equity Interests issued after the date of the Indenture, to the extent that any required adjustment to the Conversion Price has been entitled made pursuant to this subsection (e); (ii) the issuance of Common Stock pursuant to the exercise of any Equity Interest outstanding on the Distribution Date date of this issuance, or pursuant to any contract or other arrangement described in accordance with the terms and provisions of and applicable Offering Memorandum; or
(4) any Common Stock or Equity Interests issued to the RightsCompany's (or any Subsidiary's) employees, consultants or directors pursuant to any plan or agreement approved by either the stockholders of the Company or a majority of the Company's independent directors; or
(5) the issuance of any Common Stock or Equity Interests in any bona fide underwritten public offering.
(df) In case Company the Company, after the date of this Indenture, shall, by dividend or otherwise, at any time make a distribution distribute to all holders of its Class A common stock exclusively in Common Stock cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant referred to in subsection (c) of this Section) in an aggregate amount that, together with the sum of (xi) the aggregate amount of any other distributions to all holders of its Common Stock made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution and in respect of which no Conversion Price adjustment pursuant to this subsection (f) has been made and (ii) the "Distribution Record Date") aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of such date of determination, of consideration payable in respect of any tender offer by the Company or a subsidiary for all or any portion of the Common Stock consummated within 12 months preceding the date fixed for determining the stockholders entitled to such distribution and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (eg) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/215% of the product of the Current Market Price current market price per share (determined as provided in subsection (fh) of this Section) of the Class A common stock on the Distribution Record Date multiplied by date fixed for the determination of stockholders entitled to receive such distribution times the number of shares of Class A common stock Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company)such date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in subsection (fh) of this Section) of the Class A common stock on the Distribution Record Date date fixed for such determination less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within distributed during such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) Common Stock and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Datecurrent market price, such reduction to become effective immediately prior to the opening of business on the day following date after the Distribution Record Datedate fixed for such determination. Notwithstanding the foregoing, in the event that the amount of cash and the fair market value of such consideration so distributed exceeds the current market price per share of Common Stock, or such current market price exceeds such fair market value by less than $0.10 per share, the Company may, in lieu of making an adjustment in the Conversion Price pursuant to this subsection (f), make adequate provision so that each Noteholder who converts such Note after the record date for such distribution will be entitled to receive upon such conversion, in addition to shares of Common Stock, the amount of cash or other consideration such Noteholder would have received had such Note been converted immediately prior to the record date for such distribution.
(eg) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary subsidiary, after the date of Company this Indenture, for all or any portion of the Class A common stock Common Stock shall be consummatedconsummated and such tender offer shall involve an aggregate consideration having a fair market value (as determined by the Board of Directors, if an Excess Payment is whose determination shall be conclusive and described in a Board Resolution) as of the last time (the "Expiration Time") that tenders may be made pursuant to such tender offer (as it may be amended) that, together with (i) aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the consummation of such tender offer, of other consideration paid or payable in respect of any tender offer by the Company or a subsidiary for all or any portion of the Common Stock consummated within the 12 months preceding the consummation of such tender offer or other negotiated transaction and the aggregate amount in respect of such Excess Payment, together with the sum of which no Conversion Price adjustment pursuant to this subsection (xg) has been made and (ii) the aggregate amount of any distributions, by dividend or otherwise, distributions to all holders of the Class A common stock Common Stock made exclusively in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment consummation of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date offer and in respect of which no adjustment in the Conversion Price adjustment pursuant to subsection (c) or (df) of this Section or this subsection (e) has been made, exceeds 12 1/215% of the product of the Current Market Price current market price per share (determined as provided in subsection (fh) of this Section) of immediately prior to the Class A common stock on the Purchase Date multiplied by Expiration Time times the number of shares of Class A common stock Common Stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in shares) at the treasury of Company)Expiration Time, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.sh
Appears in 1 contract
Sources: Indenture (P Com Inc)
Adjustment of Conversion Price. The Conversion Price as of the Issue Date shall be subject to adjustment from time to time as follows:
(ai) In case Company the Company, after the Issue Date, shall (iA) pay a stock dividend in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (ii) make a distribution in shares of Class A common stock to holders of Class A common its capital stock (whether shares of its Common Stock or of capital stock of any event treated as such for U.S. Federal income tax purposesother class), (iiiB) subdivide its outstanding shares of Class A common stock into a greater number of shares of Class A common stock or Common Stock, (ivC) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares, or (D) issue by reclassification of its shares of Class A common stockCommon Stock any shares of capital stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of this a Note thereafter surrendered for conversion shall be entitled to receive the an equivalent number of shares of Class A common capital stock of the Company which he would have owned immediately following such action had the such Note been converted immediately prior thereto. Any adjustment made pursuant to this subsection (ai) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification.
(bii) In case Company shall issue rightsthe Company, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than after the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rightsIssue Date, options or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case Company shall distribute to all holders of Class A common stock its outstanding Common Stock any shares of capital stock of Company (other than Class A common stockCommon Stock), evidences of indebtedness, its indebtedness or assets (including securities and cash, rightsbut excluding any cash dividend paid out of current or retained earnings of the Company and dividends or distributions payable in stock for which adjustment is made pursuant to subparagraph (d)(i)) or warrants, options or warrants entitling the holders thereof rights to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11)Company, then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the record date of such distribution by a fraction of which the numerator shall be the Current Market Conversion Price (determined as provided then in subsection (f) below) of the Class A common stock on the record date mentioned below effect less the fair market value on such record date (as determined in good faith by the Board of Directors of the Company, with the concurrence of a majority of Independent Directors, whose which determination shall be conclusive evidence of such fair market value and described in a board resolutionconclusive) of the portion of the capital stock or the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants indebtedness or other the assets so distributed to the holder of one share of Common Stock or of such warrants, options or subscription rights applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), Common Stock and of which the denominator shall be such Current Market the Conversion Price of the Class A common stockthen in effect. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock stockholders entitled to receive such distribution. Notwithstanding If at the foregoing, in case Company shall distribute rightsend of the period during which warrants, options or warrants to subscribe for additional shares of Company's capital stock rights described in this subparagraph (other than rightsd)(ii) are exercisable not all such warrants, options or warrants referred rights shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based on the number of warrants, options or rights actually exercised. Notwithstanding anything in subsection (b) above) ("Rights"this subparagraph(d)(ii) to all holders the contrary, with respect to any warrants, options or rights covered by this subparagraph(d)(ii), if such warrants, options or rights are only exercisable upon the occurrence of Class A common stockcertain triggering events, Company maythen for purposes of this subparagraph (d)(ii), in lieu of making such warrants, options or rights shall not be deemed issued or distributed, and any adjustment to the Conversion Price required by this subparagraph (d)(ii) shall not be made until such triggering events occur and such warrants, options or rights become exercisable.
(iii) In case the Company, after the Issue Date, shall issue shares of its Common Stock pursuant to the foregoing provisions exercise of this subsection those rights (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversionincluding conversion rights), in addition to the warrants, options, shares of Class A common capital stock issuable upon such conversion (the "Conversion Shares")convertible into Common Stock or evidences of its indebtedness convertible into Common Stock, a number any of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible were outstanding immediately prior to the Distribution Issue Date would have been entitled (“Convertible Securities”) at a price per share less than the Conversion Price in effect on the Distribution Date in accordance with date the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to issues such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company)Common Stock, the Conversion Price shall be reduced immediately thereafter so that the same it shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) thereto by a fraction fraction, of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) number of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within Common Stock outstanding immediately prior to the issuance of such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by additional shares plus the number of shares of Class A common stock outstanding on Common Stock which the Distribution Record Date) aggregate consideration, if any, received by the Company upon such issuance would purchase at the Conversion Price then in effect, and the denominator shall be the number of shares of Common Stock that would be outstanding immediately after the issuance of such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, additional shares. Such adjustments shall be made successively whenever such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Datean issuance is made.
(eiv) In any case in which this Section 4 shall require that an adjustment be made immediately following a tender offer record date or other negotiated transaction made an effective date, the Company may elect to defer (but only until five (5) business days following the mailing by the Company or any Subsidiary to the Holders of Company for all or any portion Notes of the Class A common stock shall be consummatedcertificate required by subparagraph (d)(vi)) issuing to the holder of any Note converted after such record date or effective date the shares of Common Stock issuable upon such conversion over and above the shares of Common Stock issuable upon such conversion on the basis of the Conversion Price prior to adjustment, if an Excess Payment is made in respect of and paying to such tender offer or other negotiated transaction and the aggregate holder any amount of such Excess Payment, together with the sum cash in lieu of a fractional share.
(xv) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no No adjustment in the Conversion Price pursuant shall be required to subsection be made unless such adjustment would require an increase or decrease of at least one percent (c1%) or (d) in such price; provided, however, that any adjustments which by reason of this subparagraph (d)(v) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 4 shall be made and rounded to the nearest whole cent or this subsection share, as applicable.
(evi) has been made plus Whenever the Conversion Price is adjusted as provided in Section 4(d) herein, the Company will promptly mail to the Holders of the Notes, a certificate of the Company’s Treasurer or Chief Financial Officer setting forth the Conversion Price as so adjusted and a brief statement of facts accounting for such adjustment.
(yvii) the aggregate amount of all Excess Payments in respect Irrespective of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by and the number of shares of Class A common stock outstanding on Common Stock into which the Purchase Date (including any tendered shares but excluding any shares held in Notes are convertible as a result of such adjustment, the treasury of Company), Notes theretofore and thereafter issued may continue to express the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash Common Stock and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on Common Stock into which the Purchase Date) and Notes are convertible as the denominator shall be such Current Market Conversion Price per share (determined of Common Stock and the number of shares of Common Stock into which the Notes are convertible as provided in subsection (f) of this Section) of expressed upon the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase DateNotes when initially issued.
Appears in 1 contract
Sources: Convertible Subordinated Note (Net Perceptions Inc)
Adjustment of Conversion Price. The Conversion Price conversion price applicable to the Debt Securities of any series shall be subject to adjustment from time to time as follows:
(a) In case Company Unilever N.V. shall (i1) pay a dividend in shares of Class A common stock or make a distribution to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)N.V. Shares in N.V. Shares, (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii2) subdivide its outstanding shares of Class A common stock N.V. Shares into a greater number of shares of Class A common stock or shares, (iv3) combine its outstanding shares of Class A common stock N.V. Shares into a smaller number of shares or (4) issue any shares by reclassification of Class A common stockits N.V. Shares, the Conversion Price conversion price in effect immediately prior to such action shall be adjusted so that the holder Holder of this Note any Debt Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock N.V. Shares which he would have owned or have been entitled to receive immediately following such action had the Note such Debt Security been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (e) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case Company Unilever N.V. shall issue rights, options rights or warrants to all holders of Class A common stock N.V. Shares entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) N.V. Shares at a price per share (or having a conversion price per share) less than the Current Market Price current market price per share N.V. Share (as determined pursuant to subsection (fd) below) of the Class A common stock on the record date for determining mentioned below, the holders conversion price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by multiplying:
(1) the conversion price in effect immediately prior to the date of issuance of such rights or warrants by a fraction, of which
(2) the numerator shall be (A) the number of N.V. Shares outstanding on the date of issuance of such rights or warrants immediately prior to such issuance, plus (B) the number of shares which the aggregate offering price (in United States dollars) of the Class A common stock total number of shares so offered would purchase at such current market price (determined by multiplying such total number of shares by the exercise price of such rights or warrants and dividing the product so obtained by such current market price), and of which
(3) the denominator shall be (A) the number of N.V. Shares outstanding on the date of issuance of such rights or warrants immediately prior to such issuance, plus (B) the number of additional N.V. Shares which are so offered for subscription or purchase. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately, except as provided in subsection (e) below, after the record date for the determination of holders entitled to receive such rightsrights or warrants. In determining whether any rights or warrants entitle the holders to subscribe for or purchase N.V. Shares at less than such current market price, options and in determining the aggregate offering price of such N.V. Shares, there shall be taken into account any consideration received by Unilever N.V. for such rights or warrants, the Conversion Price value of such consideration, if other than cash, to be determined, in good faith, by the Board of Directors of Unilever N.V.
(c) In case Unilever N.V. shall distribute to all holders of N.V. Shares evidences of indebtedness, equity securities other than N.V. Shares or other assets (other than cash dividends or cash distributions payable out of retained earnings), or shall distribute to all holders of N.V. Shares rights or warrants to subscribe for or purchase any of its securities (other than those referred to in subsection (b) above), then in each such case the conversion price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per N.V. Share (determined as provided in subsection (fd) below) of the Class A common stock on the record date mentioned below less the then fair market value on such record date (in United States dollars) (as determined by the Board of Directors, Directors of Unilever N.V. whose determination shall shall, if made in good faith, be conclusive evidence of such fair market value and described in a board resolutionconclusive) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants equity securities or other assets so distributed or of such subscription rights or warrants applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), N.V. Share and of which the denominator shall be such Current Market Price of the Class A common stockcurrent market price per N.V. Share (determined as provided in subsection (d) below). Such adjustment shall become effective immediately immediately, except as provided in subsection (e) below, after the record date for the determination of the holders of Class A common stock stockholders entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at For the purpose of any time make a distribution to all holders of its Class A common stock exclusively in cash computation under subsections (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection b) and (c) above, the current market price per N.V. Share at any date shall be deemed to be the average of this Section) the daily Closing Prices on the 5 consecutive Trading Days commencing not more than 20 Trading Days before the date in an aggregate amount that, together with the sum of question. The term “Closing Price” on any Trading Day shall mean (xi) the aggregate amount of any other distributions made exclusively last reported sales price per N.V. Share on such Trading Day on the New York Stock Exchange, or if not reported on such Exchange, on the Composite Tape, or, in cash to all holders of Class A common stock within case no such reported sale takes place on such Trading Day, the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% average of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock reported closing bid and asked quotations on the Distribution Record Date multiplied by New York Stock Exchange on such Trading Day, (ii) if the number of shares of Class A common stock outstanding N.V. Shares are not listed or admitted for trading on the Distribution Record Date (excluding shares held in the treasury of Company)New York Stock Exchange, the Conversion Price shall be reduced so that the same shall equal the last reported sales price determined by multiplying on such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of other national securities exchange on which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.N.V. Shares
Appears in 1 contract
Sources: Indenture (Unilever PLC)
Adjustment of Conversion Price. The Conversion Price applicable to any series of Convertible Securities shall be subject to adjustment adjusted from time to time as follows:
(a) In case the Company shall shall, at any time or from time to time while the Securities of any series are outstanding, (i) pay a dividend on its Common Stock in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii) subdivide its outstanding shares of Class A common stock Common Stock into a greater larger number of shares of Class A common stock shares, or (iviii) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares of Class A common stockshares, the Conversion Price for such series in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of this Note any Security of such series thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock Common Stock or other securities of the Company which he would have owned immediately following or have been entitled to receive after the happening of any of the events described above, had such action had the Note Convertible Security of such series been converted immediately prior theretoto the happening of such event. Any An adjustment made pursuant to this subsection subdivision (a) shall become effective immediately after the record date effective, in the case of a dividend or distribution and shall become effective dividend, on the payment date retroactively to immediately after the effective date in the case of a subdivision or combination.
(b) In case Company shall issue rights, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case Company shall distribute to all holders of Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock on the record date mentioned below less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolution) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), and of which the denominator shall be such Current Market Price of the Class A common stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants referred to in subsection (b) above) ("Rights") to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
record date for the determination of shareholders entitled to receive such dividend, subject to the provisions of paragraph (e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (dg) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date 1605, and in respect of which no adjustment shall become effective in the Conversion Price pursuant to subsection (c) case of a subdivision or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect combination immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to after the opening of business on the day following the Purchase Dateday when such subdivision or combination, as the case may be, becomes effective.
(b) In case the Company shall, at any time or from time to time while the Convertible Securities of any series are outstanding, issue rights or warrants to all holders of its shares of Common Stock entitling them (for a period expiring within 45 days of the record date mentioned
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (herein called the "Conversion Price Price") shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (i1) make or pay a dividend (or other distribution) in shares of Class A common stock to holders Common Stock on any class of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Capital Stock of the Company, (ii) make a distribution in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (iii2) subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock or (iv3) combine or reclassify its outstanding shares of Class A common stock Common Stock into a smaller number of shares of Class A common stockshares, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of this Note any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock which Common Stock that he would have owned immediately following such action had the Note such Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (h) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights, options or warrants to all holders of Class A common stock Common Stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) Common Stock at a price per share (or having a conversion price per share) less than the Current Market Price then current market price per share of the Common Stock (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrantsmentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by multiplying multiplying:
(i) the Conversion Price in effect immediately prior to the date of issuance of such record date rights or warrants by a fraction fraction, of which which
(ii) the numerator shall be (A) the number of shares of Class A common stock Common Stock outstanding as on the date of the close issuance of business on such record date rights, options or warrants, immediately prior to such issuance, plus (B) the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price current market price (as determined pursuant to subsection (f) belowby multiplying such total number of shares by the exercise price of such rights, options or warrants and dividing the product so obtained by such current market price), and of which which
(iii) the denominator shall be (A) the number of shares of Class A common stock Common Stock outstanding on the date of issuance of such record date rights, options or warrants, immediately prior to such issuance, plus (B) the number of additional shares of Class A common stock Common Stock which are so offered for subscription or purchase (or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall become effective immediately after such record date. For the purposes of this immediately, except as provided in subsection (b)h) below, after the number record date for the determination of shares of Class A common stock at holders entitled to receive such rights, options or warrants; provided, however, that if -------- ------- any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined issued by the Board Company as described in this subsection (b) are only exercisable upon the occurrence of Directorscertain triggering events relating to control and provided for in shareholder rights plans, then the Conversion Price will not be adjusted as provided in this subsection (b) until such triggering events occur.
(c) In case the Company or any Subsidiary of the Company shall distribute to all holders of Class A common stock shares Common Stock, any of capital stock of Company (other than Class A common stock)its assets, evidences of indebtedness, cash, rights, options cash or warrants entitling the holders thereof to subscribe for other assets or purchase securities (shares of Capital Stock other than rightsCommon Stock (including securities, options but other than (x) dividends or warrants described distributions exclusively in cash or (y) any dividend or distribution for which an adjustment is required to be made in accordance with subsection (a) or (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market then current market price per share of the Common Stock (determined as provided in subsection (f) below) on the record date mentioned below less the then fair market value (as reasonably determined in good faith by the Board of Directors of the Company) of the portion of the assets so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (h) below, after the record date for the determination of stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the fair market value of the assets, evidences of indebtedness or other securities so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such fair market value by less than $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (c) and, to the extent applicable, the provisions of subsection (k) shall apply to such distribution.
(d) In case the Company or any Subsidiary of the Company shall make any distribution consisting exclusively of cash (excluding any cash portion of distributions for which an adjustment is required to be made in accordance with (c) above, or cash distributed upon a merger or consolidation to which Section 13.6 applies) to all holders of Common Stock in an aggregate amount that, combined together with (i) all other such all-cash distributions made within the then preceding 12 months in respect of which no adjustment has been made and (ii) any cash and the fair market value of other consideration paid or payable in respect of any tender offer by the Company or any of its Subsidiaries for Common Stock concluded within the preceding 12 months in respect of which no adjustment has been made, exceeds 15% of the Company's market capitalization (defined as being the product of the then current market price of the Common Stock (determined as provided in subsection (f) below) times the number of shares of Common Stock then outstanding) on the record date of such distribution, then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the then current market price per share of the Common Stock on such record date less the amount of the cash so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (h) below, after the record date for the determination of stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the cash so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such amount of cash by less than $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (d).
(e) In case there shall be completed a tender or exchange offer made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock (any such tender or exchange offer being referred to as an "Offer") that involves an aggregate consideration having a fair market value as of the expiration of such Offer (the "Expiration Time") that, together with (i) any cash and the fair market value of any other consideration payable in respect of any other Offer, as of the expiration of such other Offer, expiring within the 12 months preceding the expiration of such Offer and in respect for which no Conversion Price adjustment pursuant to this subsection (e) has been made and (ii) the aggregate amount of any all-cash distributions referred to in subsection (d) of this Section 12.5 to all holders of Common Stock within the 12 months preceding the expiration of such Offer for which no conversion price adjustment pursuant to such subsection (d) has been made, exceeds 15% of the product of the then current market price per share (determined as provided in subsection (f) below) of the Class A common stock Common Stock on the record date mentioned below less Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time, the Conversion Price shall be reduced by multiplying such Conversion Price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be (i) the product of the then current market price per share (determined as provided in subsection (f) below) of the Common Stock on the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time minus (ii) the fair market value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the Offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted being referred to as the "Purchased Shares") and the denominator shall be the product of (i) such record date current market price per share on the Expiration Time times (as ii) such number of outstanding shares on the Expiration Time less the number of Purchased Shares, such reduction to become effective immedi- ately prior to the opening of business on the day following the Expiration Time. For purposes of this subsection (e), the fair market value of any consideration with respect to an Offer shall be reasonably determined in good faith by the Board of Directors, whose determination shall be conclusive evidence Directors of such fair market value the Company and described in a board resolutionBoard Resolution.
(f) For the purpose of any computation under subsections (b), (c), (d) and (e) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the portion Last Sale Prices of a share of Common Stock for the five consecutive Trading Days selected by the Company commencing not more than 20 Trading Days before, and ending not later than, the earlier of the evidences date in question and the date before the "`ex' date," with respect to the issuance, distribution or Offer requiring such computation. If on any such Trading Day the Common Stock is not quoted by any organization referred to in the definition of indebtednessLast Sale Price in Section 12.3 hereof, the fair value of the Common Stock on such day, as reasonably determined in good faith by the Board of Directors of the Company, shall be used. For purposes of this paragraph, the term "`ex' date," when used with respect to any issuance, distribution or payments with respect to an Offer, means the first date on which the Common Stock trades regular way on the New York Stock Exchange (or if not listed or admitted to trading thereon, then on the principal national securities exchange on which the Common Stock is listed or admitted to trading) without the right to receive such issuance, distribution or Offer.
(g) In addition the foregoing adjustments in subsections (a), (b), (c), (d) and (e) above, the Company will be permitted to make such reductions in the Conversion Price as it considers to be advisable in order that any event treated for Federal income tax purposes as a dividend of stock or stock rights will not be taxable to the holders of the shares of capital stockCommon Stock. In the event the Company elects to make such a reduction in the conversion price, cashthe Company will comply with the requirements of Rule 14e-1 of the Exchange Act and any other Federal and state laws and regulations thereunder if and to the extent that such laws and regulations are applicable in connection with the reduction of the Conver- sion Price of the Notes; provided that any provisions of this Indenture which conflict with such laws shall be deemed to be superseded by the provisions of such laws.
(h) In any case in which this Section 12.5 shall require that an adjustment (including by reason of the last sentence of subsection (a) or (c) above) be made immediately following a record date, rightsthe Company may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), optionsin which case the Company shall, warrants with respect to any Security converted after such record date and on and before such adjustment shall have become effective (i) defer paying any Cash payment pursuant to Section 12.3 hereof or issuing to the Holder of such Security the number of shares of Common Stock and other Capital Stock of the Company (or other assets so distributed applicable to one share of Class A common stock (determined on the basis or securities) issuable upon such conversion in excess of the number of shares of Common Stock and other Capital Stock of the Class A common stock outstanding Company issuable thereupon only on the record date)basis of the Conversion Price prior to adjustment, and of which the denominator shall be (ii) not later than five Business Days after such Current Market Price of the Class A common stock. Such adjustment shall have become effective immediately after effective, pay to such Holder the record date for appropriate Cash payment pursuant to Section 12.3 hereof and issue to such Holder the determination of the holders of Class A common stock entitled to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options or warrants to subscribe for additional shares of Common Stock and other Capital Stock of the Company issuable on such conversion.
(i) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1.0% of the Conversion Price; provided, that any adjustments which by reason of this -------- subsection (i) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article XII shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(j) Whenever the Conversion Price is adjusted as herein provided, the Company shall promptly (i) file with the Trustee and each conversion agent an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment, and (ii) mail or cause to be mailed a notice of such adjustment to each holder of Securities at his address as the same appears on the registry books of the Company's capital stock .
(k) In the event that the Company distributes rights or warrants (other than rights, options or warrants those referred to in subsection (b) above) ("Rights") pro rata to all holders of Class A common stockCommon Stock, so long as any such rights or warrants have not expired or been redeemed by the Company, the Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 shall make proper provision so that the holder Holder of the any Note who converts the Note (or any portion thereof) after the record date surrendered for such distribution and prior to the expiration or redemption of the Rights shall conversion will be entitled to receive upon such conversion, in addition to the shares of Class A common stock Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights rights or warrants to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights rights or warrants of separate certificates evidencing such Rights rights or warrants (the "Distribution Date"), the same number of Rights rights or warrants to which a holder of a number of shares of Class A common stock Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; rights or warrants, and (ii) if such conversion occurs after the such Distribution Date, the same number of Rights rights or warrants to which a holder of the number of shares of Class A common stock Common Stock into which the principal amount of the such Note so converted was convertible immediately prior to the such Distribution Date would have been entitled on the such Distribution Date in accordance with the terms and provisions of and applicable to the Rightsrights or warrants.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by Company or any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price as of the Issue Date shall be subject to adjustment from time to time as follows:
(ai) In case Company the Company, after the Issue Date, shall (iA) pay a stock dividend in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes), (ii) make a distribution in shares of Class A common stock to holders of Class A common its capital stock (whether shares of its Common Stock or of capital stock of any event treated as such for U.S. Federal income tax purposesother class), (iiiB) subdivide its outstanding shares of Class A common stock into a greater number of shares of Class A common stock or Common Stock, (ivC) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares, or (D) issue by reclassification of its shares of Class A common stockCommon Stock any shares of capital stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of this a Note thereafter surrendered for conversion shall be entitled to receive the an equivalent number of shares of Class A common capital stock of the Company which he would have owned immediately following such action had the such Note been converted immediately prior thereto. Any adjustment made pursuant to this subsection (ai) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification.
(bii) In case Company shall issue rightsthe Company, options or warrants to all holders of Class A common stock entitling them to subscribe for or purchase shares of Class A common stock (or securities convertible into Class A common stock) at a price per share (or having a conversion price per share) less than after the Current Market Price per share (as determined pursuant to subsection (f) below) of the Class A common stock on the record date for determining the holders of the Class A common stock entitled to receive such rightsIssue Date, options or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Class A common stock outstanding as of the close of business on such record date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below), and of which the denominator shall be the number of shares of Class A common stock outstanding on such record date plus the number of additional shares of Class A common stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directors.
(c) In case Company shall distribute to all holders of Class A common stock its outstanding Common Stock any shares of capital stock of Company (other than Class A common stockCommon Stock), evidences of indebtedness, its indebtedness or assets (including securities and cash, rightsbut excluding any cash dividend paid out of current or retained earnings of the Company and dividends or distributions payable in stock for which adjustment is made pursuant to subparagraph (d)(i)) or warrants, options or warrants entitling the holders thereof rights to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11)Company, then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the record date of such distribution by a fraction of which the numerator shall be the Current Market Conversion Price (determined as provided then in subsection (f) below) of the Class A common stock on the record date mentioned below effect less the fair market value on such record date (as determined in good faith by the Board of Directors of the Company, with the concurrence of a majority of Independent Directors, whose which determination shall be conclusive evidence of such fair market value and described in a board resolutionconclusive) of the portion of the capital stock or the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants indebtedness or other the assets so distributed to the holder of one share of Common Stock or of such warrants, options or subscription rights applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date), Common Stock and of which the denominator shall be such Current Market the Conversion Price of the Class A common stockthen in effect. Such adjustment shall become effective immediately after the record date for the determination of the holders of Class A common stock stockholders entitled to receive such distribution. Notwithstanding If at the foregoing, in case Company shall distribute rightsend of the period during which warrants, options or warrants to subscribe for additional shares of Company's capital stock rights described in this subparagraph (other than rightsd)(ii) are exercisable not all such warrants, options or warrants referred rights shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based on the number of warrants, options or rights actually exercised. Notwithstanding anything in subsection (b) above) ("Rights"this subparagraph(d)(ii) to all holders the contrary, with respect to any warrants, options or rights covered by this subparagraph(d)(ii), if such warrants, options or rights are only exercisable upon the occurrence of Class A common stockcertain triggering events, Company maythen for purposes of this subparagraph (d)(ii), in lieu of making such warrants, options or rights shall not be deemed issued or distributed, and any adjustment to the Conversion Price required by this subparagraph (d)(ii) shall not be made until such triggering events occur and such warrants, options or rights become exercisable.
(iii) In case the Company, after the Issue Date, shall issue shares of its Common Stock pursuant to the foregoing provisions exercise of this subsection those rights (c) of Section 9.6 make proper provision so that the holder of the Note who converts the Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversionincluding conversion rights), in addition to the warrants, options, shares of Class A common capital stock issuable upon such conversion (the "Conversion Shares")convertible into Common Stock or evidences of its indebtedness convertible into Common Stock, a number any of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible were outstanding immediately prior to the Distribution Issue Date would have been entitled ("Convertible Securities") at a price per share less than the Conversion Price in effect on the Distribution Date in accordance with date the terms and provisions of and applicable to the Rights.
(d) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to issues such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date multiplied by the number of shares of Class A common stock outstanding on the Distribution Record Date (excluding shares held in the treasury of Company)Common Stock, the Conversion Price shall be reduced immediately thereafter so that the same it shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) thereto by a fraction fraction, of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) number of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within Common Stock outstanding immediately prior to the issuance of such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by additional shares plus the number of shares of Class A common stock outstanding on Common Stock which the Distribution Record Date) aggregate consideration, if any, received by the Company upon such issuance would purchase at the Conversion Price then in effect, and the denominator shall be the number of shares of Common Stock that would be outstanding immediately after the issuance of such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Distribution Record Date, additional shares. Such adjustments shall be made successively whenever such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Datean issuance is made.
(eiv) In any case in which this Section 4 shall require that an adjustment be made immediately following a tender offer record date or other negotiated transaction made an effective date, the Company may elect to defer (but only until five (5) business days following the mailing by the Company or any Subsidiary to the Holders of Company for all or any portion Notes of the Class A common stock shall be consummatedcertificate required by subparagraph (d)(vi)) issuing to the holder of any Note converted after such record date or effective date the shares of Common Stock issuable upon such conversion over and above the shares of Common Stock issuable upon such conversion on the basis of the Conversion Price prior to adjustment, if an Excess Payment is made in respect of and paying to such tender offer or other negotiated transaction and the aggregate holder any amount of such Excess Payment, together with the sum cash in lieu of a fractional share.
(xv) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no No adjustment in the Conversion Price pursuant shall be required to subsection be made unless such adjustment would require an increase or decrease of at least one percent (c1%) or (d) in such price; provided, however, that any adjustments which by reason of this subparagraph (d)(v) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 4 shall be made and rounded to the nearest whole cent or this subsection share, as applicable.
(evi) has been made plus Whenever the Conversion Price is adjusted as provided in Section 4(d) herein, the Company will promptly mail to the Holders of the Notes, a certificate of the Company's Treasurer or Chief Financial Officer setting forth the Conversion Price as so adjusted and a brief statement of facts accounting for such adjustment.
(yvii) the aggregate amount of all Excess Payments in respect Irrespective of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by and the number of shares of Class A common stock outstanding on Common Stock into which the Purchase Date (including any tendered shares but excluding any shares held in Notes are convertible as a result of such adjustment, the treasury of Company), Notes theretofore and thereafter issued may continue to express the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash Common Stock and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitation, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on Common Stock into which the Purchase Date) and Notes are convertible as the denominator shall be such Current Market Conversion Price per share (determined of Common Stock and the number of shares of Common Stock into which the Notes are convertible as provided in subsection (f) of this Section) of expressed upon the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase DateNotes when initially issued.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment adjusted from time to time by the Company as follows:
(a) In case the Company shall (i) pay a dividend in shares of Class A common stock Common Stock to the holders of the Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (ii) make a distribution in shares of Class A common stock Common Stock to the holders of the Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (iii) 49 subdivide or split its outstanding shares of Class A common stock Common Stock into a greater larger number of shares of Class A common stock shares, or (iv) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares of Class A common stockshares, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of this any Note thereafter surrendered for conversion shall be entitled to receive the that number of shares of Class A common stock Common Stock which he it would have owned immediately following or been entitled to receive had such action had the Note been converted immediately prior theretoto the happening of such event. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after as of the close of business on the record date in the case of a dividend in shares or distribution and shall become effective immediately after as of the close of business on the effective date in the case of a subdivision subdivision, split or combination.
(b) In case (i) the Company shall issue rights, options rights or warrants to all or substantially all holders of its Class A common stock Common Stock entitling them (for a period commencing no earlier than the record date described below and expiring not more than 60 days after such record date) to subscribe for or purchase shares of Class A common stock Common Stock (or securities convertible into Class A common stockCommon Stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share of Class A Common Stock (as determined pursuant to in accordance with subsection (f) belowg) of this Section 4.06) at the record date for the determination of shareholders entitled to receive such rights or warrants or (ii) the Company shall sell or issue any Class A common stock Common Stock and the consideration per share of Class A Common Stock to be paid upon such issuance or subscription is more than 5% less than the Current Market Price per share of Class A Common Stock or the Company shall sell or issue warrants, rights or other convertible securities to subscribe for or purchase shares of Class A Common Stock at a price per share more than 5% less than the Current Market Price per share of Class A Common Stock (each as determined in accordance with subsection (g) of this Section 4.06) on the date of such sale or issuance, the Conversion Price in effect as of the close of business on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrants, the Conversion Price thereto shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such on the record date by a fraction of which the numerator shall be the number of shares of Class A common stock Common Stock outstanding as of the close of business on such record date date, plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock Common Stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below)Price, and of which the denominator shall be the number of shares of Class A common stock Common Stock outstanding on such record date plus the number of additional shares of Class A common stock so Common Stock offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments adjustment shall be made successively whenever any such rights, warrants or convertible securities are issued, and shall become effective immediately after as of the close of business on such record date. For If at the purposes end of this subsection the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon the number of additional shares of Class A Common Stock actually issued (b), or the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury Common Stock issuable upon conversion of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directorsconvertible securities actually issued).
(c) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock, cash (excluding (x) any regular cash dividend on the Common Stock to the extent that the aggregate cash dividend per share of Common Stock in any four fiscal quarters does not exceed the greater of (A) the amount per share of Common Stock of the cash dividend on the Common Stock for the preceding four fiscal quarters to the extent that such dividend for the preceding four fiscal quarters did not require any adjustment of the Conversion Price pursuant to this Section 4.06(c) (as adjusted to reflect subdivisions or combinations of the Common Stock), and (B) 3.75% of the arithmetic average of the Closing Prices (as set forth in Section 4.06(g)) during the ten Trading Days immediately prior to the date of declaration of such dividend, (y) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, and (z) any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to Section 4.06(e)), then, in such case, the Conversion Price shall be decreased so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on the record date of such action by a fraction of which the numerator shall be the Current Market Price of the Class A Common Stock on such record date less the amount of cash so distributed (and not excluded as provided above) applicable to one share of Common Stock and the denominator shall be the Current Market Price of the Class A Common Stock on such record date, such decrease shall be effective immediately prior to the opening of business on the day following the record date of such action; PROVIDED, HOWEVER, that in the event the portion of cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Class A Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion the amount of cash such Holder would have received had such Holder converted each Note on the record date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such dividend or distribution had not been declared. If any adjustment is required to be made as set forth in this Section 4.06(c) as a result of a distribution that is a regular dividend, such adjustment shall be based upon the amount by which such distribution exceeds the amount of the regular cash dividend permitted to be excluded pursuant hereto. If an adjustment is required to be made as set forth in this Section 4.06(c) above as a result of a distribution that is not a regular dividend, such adjustment shall be based upon the full amount of the distribution.
(d) In case a tender or exchange offer made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that, as of the last time (the "EXPIRATION TIME") tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended), exceeds the Current Market Price of the Class A Common Stock on the Trading Day next succeeding the Expiration Time, the Conversion Price shall be decreased so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be the product of the number of Class A Common Stock outstanding (including any tendered or exchanged shares) on the Expiration Time multiplied by the Current Market Price of the Class A Common Stock on the Trading Day next succeeding the Expiration Time, less the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "PURCHASED SHARES") and the denominator shall be the product of the number of Class A Common Stock outstanding (less any Purchased Shares) on the Expiration Time and the Current Market Price of the Class A Common Stock on the Trading Day next succeeding the Expiration Time, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such tender or exchange offer has not been made.
(e) In case the Company shall distribute to all or substantially all holders of its Class A Common Stock any shares of capital stock of the Company (other than Class A Common Stock), evidences of indebtedness or other non-cash assets (including securities of any Person), or shall distribute to all holders of its Class A common stock shares of capital stock of Company (other than Class A common stock), evidences of indebtedness, cash, rights, options Common Stock rights or warrants entitling the holders thereof to subscribe for or purchase any of its securities (other than rights, options or warrants described excluding those referred to in subsection (b) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by this Section 9.114.06), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to as of the close of business on the record date of for such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A common stock Common Stock on the record date mentioned below less the fair market value on such record date (as reasonably determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described set forth in a board resolutionBoard Resolution delivered to the Trustee in an Officers' Certificate) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants evidences of indebtedness or other assets so distributed or of such rights or warrants applicable to one share of Class A common stock Common Stock (determined on the basis of the number of shares of the Class A common stock Common Stock outstanding on the record date), and of which the denominator shall be such the Current Market Price per share (as determined in accordance with subsection (g) of this Section 4.06) of the Class A common stockCommon Stock on such record date. Such adjustment shall become effective immediately after as of the close of business on the record date for the determination of the holders of Class A common stock shareholders entitled to receive such distribution. Notwithstanding the foregoing, in case the event that the Company shall distribute rights, options rights or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants those referred to in subsection (b) aboveof this Section 4.06) ("RightsRIGHTS") pro rata to all holders of Class A common stockCommon Stock, the Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 4.06, make proper provision so that the each holder of the a Note who converts the such Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock Common Stock issuable upon such conversion (the "Conversion SharesCONVERSION SHARES"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution DateDISTRIBUTION DATE"), the same number of Rights to which a holder of a number of shares of Class A common stock Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; Rights and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock Common Stock into which the principal amount of the Note so converted was convertible immediately prior to as of the close of business on the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(df) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring tender or exchange offer made by a Conversion Price adjustment pursuant to subsection (c) Person other than the Company or any Subsidiary of this Section) in the Company for an aggregate amount that, together with which increases the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders offeror's ownership of Class A common stock within Common Stock to more than 35% of the 12 months preceding Class A Common Stock outstanding and shall involve the date fixed for determining payment by such Person of consideration per share of Class A Common Stock having a fair market value (as determined by the stockholders entitled to such distribution Board of Directors, whose determination shall be conclusive, and described in a Board Resolution) at the last time (the "Distribution Record DateTENDER EXPIRATION TIME") and in respect of which no Conversion Price adjustment tenders or exchanges may be made pursuant to subsection such tender or exchange offer (cas it shall have been amended) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d) has been made, that exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock Common Stock on the Distribution Record Date multiplied by Trading Day next succeeding the number Tender Expiration Time, and in which, as of shares the Tender Expiration Time, the Board of Class A common stock outstanding on Directors is not recommending rejection of the Distribution Record Date (excluding shares held in the treasury of Company)offer, the Conversion Price shall be reduced decreased so that the same shall equal the price determined by multiplying such the Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (d) Tender Expiration Time by a fraction of which the numerator shall be the number of shares of Class A Common Stock outstanding (including any tendered or exchanged shares) at the Tender Expiration Time multiplied by the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock Common Stock on the Distribution Record Date less Trading Day next succeeding the Tender Expiration Time and the denominator shall be the sum of (x) the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period fair market value (including, without limitation, the distribution in respect of which such adjustment is being madedetermined as aforesaid) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of cash the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the aggregate Excess Payments Tender Expiration Time (the shares deemed so distributedaccepted, paid or payable with respect up to outstanding shares any such maximum, being referred to as the "ACCEPTED PURCHASED SHARES") and (y) the product of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock Common Stock outstanding on (less any Accepted Purchased Shares) at the Distribution Record Date) Tender Expiration Time and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock Common Stock on the Distribution Record DateTrading Day next succeeding the Tender Expiration Time, such reduction decrease to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) Tender Expiration Time. In case a tender offer or other negotiated transaction made by Company or the event that such Person is obligated to purchase shares pursuant to any Subsidiary of Company for all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to all holders of the Class A common stock made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender exchange offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection (c) but such Person is permanently prevented by applicable law from effecting any such purchases or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company)such purchases are rescinded, the Conversion Price shall again be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior adjusted to the effectiveness of be the Conversion Price reduction contemplated by which would then be in effect if such tender or exchange offer had not been made. Notwithstanding the foregoing, the adjustment described in this subsection Section 4.06(f) shall not be made if: (ea) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12 month period (including, without limitationTender Expiration Time, the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable offering documents with respect to outstanding shares such offer disclose a plan or intention to cause the Company to engage in any transaction described in Article 6; or (b) the Initial Purchaser or any of Class A common stock within such 12 months its Affiliates do not beneficially own all of the Notes.
(including, without limitationg) For purposes of this Section 4.06, the Excess Payment in respect of which such adjustment is being made) by following terms shall have the number of shares of Class A common stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in subsection (f) of this Section) of the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.meaning indicated:
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment adjusted from time to time by the Company as follows:
(a) In case the Company shall (i) pay a dividend on its Class A Common Stock in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (ii) make a distribution on its Class A Common Stock in shares of Class A common stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (iii) subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock shares, or (iv) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares of Class A common stockshares, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of this any Note thereafter surrendered for conversion shall be entitled to receive the that number of shares of Class A common stock Common Stock which he it would have owned immediately following had such action had the Note been converted immediately prior theretoto the Record Date of such event or the happening of such event (assuming such Note were convertible solely into shares of Class A Common Stock, based on the relevant Conversion Price, rather than Cash or Cash and Class A Common Stock as set forth in Section 1405). Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date Record Date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights, options rights or warrants to all or substantially all holders of its Class A common stock Common Stock entitling them for a period of not more than 60 calendar days to subscribe for or purchase shares of Class A common stock Common Stock (or securities convertible into Class A common stockCommon Stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share of Class A Common Stock (as determined pursuant to in accordance with subsection (f) belowof this Section 1406) of the Class A common stock on the record date Record Date for determining the holders determination of the Class A common stock stockholders entitled to receive such rights, options rights or warrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date Record Date by a fraction of which the numerator shall be the number of shares of Class A common stock Common Stock outstanding as of the close of business on such record date Record Date plus the number of shares of Class A common stock which the aggregate offering price of the total number of shares of Class A common stock Common Stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase (or the aggregate conversion price of the convertible securities so offered, which shall be determined by multiplying the number of shares of Class A Common Stock issuable upon conversion of such convertible securities by the conversion price per share of Class A Common Stock pursuant to the terms of such convertible securities) would purchase at such the Current Market Price per share (as determined pursuant to defined in subsection (f) below)of this Section 1406) of Class A Common Stock on such Record Date, and of which the denominator shall be the number of shares of Class A common stock Common Stock outstanding on such record date Record Date plus the number of additional shares of Class A common stock so Common Stock offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments adjustment shall be made successively whenever any such rights or warrants are issued and shall become effective immediately after such record dateRecord Date. For If at the purposes end of this subsection the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised or distributed, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon the number of additional shares of Class A Common Stock actually issued (b), or the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury Common Stock issuable upon conversion of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of Directorsconvertible securities actually issued).
(c) In case the Company shall distribute to all or substantially all holders of its Class A common stock Common Stock any shares of capital stock of the Company (other than Class A common stockCommon Stock), evidences of indebtedness, cash, rights, options or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described in subsection (b) above) Indebtedness or other non-Cash assets (including securities of Persons any Person other than the Company but excluding (i1) dividends or distributions paid exclusively in cash except as described Cash referred to in subsection (de) below, of this Section 1406 or (ii2) dividends and or distributions described referred to in subsection (a) above of this Section 1406), or shall distribute to all or substantially all Holders of its Class A Common Stock rights or warrants to subscribe for or purchase any of its securities (excluding those rights and warrants referred to in subsection (iiib) distributions in connection with of this Section 1406 and also excluding the consolidation, merger distribution of rights to all Holders of Class A Common Stock pursuant to the adoption of a stockholder rights plan or transfer the detachment of assets covered by Section 9.11such rights under the terms of such stockholder rights plan), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the current Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price per share (determined as provided defined in subsection (f) belowof this Section 1406) of the Class A common stock Common Stock on the record date Record Date mentioned below less the fair market value on such record date Record Date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolutionwhich shall be evidenced by an Officers’ Certificate delivered to the Trustee and the Conversion Agent) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants evidences of indebtedness or other non-Cash assets so distributed or of such rights or warrants applicable to one share of Class A common stock Common Stock (determined on the basis of the number of shares of the Class A common stock Common Stock outstanding on the record dateRecord Date), and of which the denominator shall be the Current Market Price per share (as defined in subsection (f) of this Section 1406) of the Class A Common Stock on such Record Date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the Record Date for the determination of shareholders entitled to receive such distribution. In the event the then fair market value (as so determined) of the portion of the capital stock, evidences of Indebtedness or other non-cash assets so distributed or of such rights or warrants applicable to one share of Class A Common Stock is equal to or greater than the Current Market Price per share of the Class A Common Stock on such Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Note shall have the right to receive upon conversion the amount of capital stock, evidences of Indebtedness or other non-cash assets so distributed or of such rights or warrants such Holder would have received had such Holder converted each Note on such Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price, which would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the fair market value of any distribution for purposes of this Section 1406(c) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Class A common stockCommon Stock. Such adjustment shall become effective immediately after In the record date for event that the determination Company implements a stockholder rights plan (“Rights Plan”), upon conversion of the Notes into Class A Common Stock, to the extent that the Rights Plan has been implemented and is still in effect upon such conversion, the Holders of Notes will receive, in addition to the Class A Common Stock, the rights described therein (whether or not the rights have separated from the Class A Common Stock at the time of conversion), subject to the limitations set forth in the Rights Plan. Any distribution of rights or warrants pursuant to a Rights Plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall not constitute a distribution of rights or warrants pursuant to this Section 1406(c). Rights or warrants distributed by the Company to all Holders of Class A Common Stock entitling the Holders thereof to subscribe for or purchase shares of the capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of Class A Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Class A Common Stock, shall be deemed not to have been distributed for purposes of this Section 1406 (and no adjustment to the Conversion Price under this Section 1406 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Price shall be made under this Section 1406(c). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of Indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Record Date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Price under this Section 1406 was made, (1) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Price 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 Class A common stock entitled Common Stock with respect to receive such distribution. Notwithstanding the foregoing, in case Company shall distribute rights, options rights or warrants to subscribe for additional shares of Company's capital stock (other than rightsassuming such holder had retained such rights or warrants), options or warrants referred to in subsection (b) above) ("Rights") made to all holders of Class A common stock, Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 make proper provision so that the holder Common Stock as of the Note who converts date of such redemption or repurchase, and (2) in the Note (case of such rights or warrants which shall have expired or been terminated without exercise by any portion holders thereof) after , the record date for such distribution and prior to the expiration or redemption of the Rights Conversion Price shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined readjusted as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms rights and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have warrants had not been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rightsissued.
(d1) In case Company shall, by dividend or otherwise, at any time make a distribution to all holders of its Class A common stock exclusively in cash (including any distributions of cash out of current or retained earnings of Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of Class A common stock within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection (c) or (e) of this Section or this subsection (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions offer made by the Company or any of its Subsidiaries for Class A common stock concluded within Common Stock shall expire and such tender offer (as amended upon the 12 months preceding expiration thereof) shall involve the Distribution Record Date payment of aggregate consideration in an amount (determined as the sum of the aggregate amount of Cash consideration and in respect the aggregate fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence thereof and which no shall be evidenced by an Officers’ Certificate delivered to the Trustee and the Conversion Price adjustment pursuant to subsections (c) or (eAgent thereof) of this Section or this subsection (dany other consideration) has been made, that exceeds 12 1/2% of the product of an amount equal to the Current Market Price per share of Class A Common Stock (as determined as provided in accordance with subsection (f) of this SectionSection 1406) as of the Class A common stock last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Distribution Record Expiration Date multiplied by is hereinafter sometimes called the number “Expiration Time”), then, immediately prior to the opening of shares of Class A common stock outstanding business on the Distribution Record Date (excluding shares held in day after the treasury of Company)Expiration Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such the Conversion Price in effect immediately prior to the effectiveness close of business on the Conversion Price reduction contemplated by this subsection (d) Expiration Date by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in subsection (f) product of this Section) of the Class A common stock on the Distribution Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock Common Stock outstanding on (including tendered shares but excluding any shares held in the Distribution Record Datetreasury of the Company) and at the denominator shall be such Expiration Time multiplied by the Current Market Price per share of the Class A Common Stock (as determined as provided in accordance with subsection (f) of this SectionSection 1406) on the Trading Day next succeeding the Expiration Date and the denominator shall be the sum of (x) the aggregate consideration (determined as aforesaid) payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (y) the product of the number of shares of Class A common stock Common Stock outstanding (less any Purchased Shares and excluding any shares held in the treasury of the Company) at the Expiration Time and the Current Market Price per share of Class A Common Stock (as determined in accordance with subsection (f) of this Section 1406) on the Distribution Record Trading Day next succeeding the Expiration Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Expiration Date. In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of shares actually purchased. If the application of this Section 1406(d)(2) to any tender offer would result in an increase in the Conversion Price, no adjustment shall be made for such tender offer under this Section 1406(d)(2).
(2) For purposes of this Section 1406(d), the term “tender offer” shall mean and include both tender offers and exchange offers, all references to “purchases” of shares in tender offers (and all similar references) shall mean and include both the purchase of shares in tender offers and the acquisition of shares pursuant to exchange offers, and all references to “tendered shares” (and all similar references) shall mean and include shares tendered in both tender offers and exchange offers.
(e) In case a tender offer the Company shall make any cash dividend or other negotiated transaction made by Company or any Subsidiary of Company for distribution to all or any portion of the Class A common stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, to substantially all holders of the Class A common stock Common Stock during any quarterly fiscal period in an aggregate amount that, together with other cash dividends or distributions made in cash (including any distributions of cash out of current or retained earnings of Company) within the 12 months preceding the date of payment of during such current negotiated transaction consideration or expiration of such current tender offer, as the case may be quarterly fiscal period (the "Purchase Date"“Current Dividend Rate”), and as to which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e) has been made, exceeds 12 1/2% of the product of the Current Market Price $0.15 per share (determined as provided in subsection appropriately adjusted from time to time for any share dividends on, or subdivisions of, common stock) (f) of this Section) of the Class A common stock on the Purchase Date multiplied by the number of shares of Class A common stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of Company“Initial Dividend Rate”), the Conversion Price Rate shall be reduced adjusted so that that, if the same Current Dividend Rate is greater than the Initial Dividend Rate, then the Conversion Rate in effect immediately after the Record Date for such distribution shall be equal to the price determined by multiplying such Conversion Price Rate in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection (e) Record Date for such distribution multiplied by a fraction of which the numerator shall be the Current Market Last Reported Sale Price per share (as determined as provided in accordance with subsection (f) of this SectionSection 1406) of the Class A common stock Common Stock on the Purchase Trading Day immediately preceding the Record Date less the sum of the aggregate amount of cash and the aggregate Excess Payments so distributedfor such distribution (or, paid or payable within such 12 month period (including, without limitationif earlier, the Excess Payment in respect of which Ex-Dividend Date relating to such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock outstanding on the Purchase Datedistribution) and the denominator shall be such Current Market Price the amount in Cash per share the Company distributes to holders of Class A Common Stock in excess of $0.15 (determined as appropriately adjusted from time to time for any share dividends on, or subdivision of, the Class A Common Stock) subtracted from such Last Reported Sale Price. Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the Record Date for such dividend or distribution; provided that if such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in subsection effect if such dividend or distribution had not been declared.
(f) For the purpose of any computation under this SectionSection 1406, (i) the current market price (the “Current Market Price”) shall mean, with respect to any date of determination, the Class A common stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.C
Appears in 1 contract
Sources: First Supplemental Indenture (Sinclair Broadcast Group Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a1) In case the Company shall (i1) pay a dividend in shares of Class A common stock Common Stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (ii2) make a distribution in shares of Class A common stock Common Stock to holders of Class A common stock (or any event treated as such for U.S. Federal income tax purposes)Common Stock, (iii3) subdivide its outstanding shares of Class A common stock Common Stock into a greater number of shares of Class A common stock Common Stock or (iv4) combine its outstanding shares of Class A common stock Common Stock into a smaller number of shares of Class A common stockCommon Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of this any Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A common stock Common Stock which he would have owned immediately following such action had the Note such Notes been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a1) shall become effective immediately after the record date Record Date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b2) In case the Company shall issue rights, options rights or warrants to substantially all holders of Class A common stock Common Stock entitling them (for a period commencing no earlier than the Record Date for the determination of holders of Class A Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such Record Date) to subscribe for or purchase shares of Class A common stock Common Stock (or securities convertible into Class A common stockCommon Stock) at a price per share (or having a conversion price per share) less than the Current Market Price per share current market price (as determined pursuant to subsection (f6) below) of the Class A common stock Common Stock on the record date for determining the holders of the Class A common stock entitled to receive such rights, options or warrantsRecord Date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date Record Date by a fraction of which the numerator shall be the number of shares of Class A common stock Common Stock outstanding as of the close of business on such record date Record Date, plus the number of shares of Class A common stock Common Stock which the aggregate offering price of the total number of offered shares of Class A common stock so offered (to the holders of outstanding Class A common stock) for subscription or purchase Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price (as determined pursuant to subsection (f) below)current market price, and of which the denominator shall be the number of shares of Class A common stock Common Stock outstanding on such record date Record Date plus the number of additional shares of Class A common stock so Common Stock offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. For the purposes of this subsection (b), the number of shares of Class A common stock at any time outstanding shall not include shares held in the treasury of Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of such Class A common stock. The Company shall not issue any rights, options or warrants in respect of shares of Class A common stock held in the treasury of Company. In determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of Class A common stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Class A common stock, there shall be taken into account any consideration received by Company for such rights, warrants, or options, the value of such consideration, if any, other than cash, to be determined by the Board of DirectorsRecord Date.
(c3) In case the Company shall distribute to all holders of Class A common stock Common Stock shares of capital stock of the Company (other than Class A common stock)Common Stock, evidences of indebtednessindebtedness or other assets (other than cash dividends), cash, rights, options or shall distribute to substantially all holders of Class A Common Stock rights or warrants entitling the holders thereof to subscribe for or purchase securities (other than rights, options or warrants described those referred to in subsection (b2) above) or other assets (including securities of Persons other than Company but excluding (i) dividends or distributions paid exclusively in cash except as described in subsection (d) below, (ii) dividends and distributions described in subsection (a) above and (iii) distributions in connection with the consolidation, merger or transfer of assets covered by Section 9.11), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price (determined as provided in subsection (f6) below) of the Class A common stock Common Stock on the record date Record Date mentioned below less the then fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a board resolutionresolution of the Board of Directors) of the portion of the evidences of indebtedness, shares of capital stock, cash, rights, options, warrants or other assets so distributed or of such subscription rights or warrants applicable to one share of Class A common stock (determined on the basis of the number of shares of the Class A common stock outstanding on the record date)Common Stock, and of which the denominator shall be such Current Market Price current market price of the Class A common stockCommon Stock. Such adjustment shall become effective immediately after the record date Record Date for the determination of the holders of Class A common stock Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the event that the Company shall distribute rights, options rights or warrants to subscribe for additional shares of Company's capital stock (other than rights, options or warrants those referred to in subsection (b2) above) ("Rights") pro rata to all holders of Class A common stockCommon Stock, the Company may, in lieu of making any adjustment pursuant to the foregoing provisions of this subsection (c) of Section 9.6 2.3(f), make proper provision so that the holder each Holder of the a Note who converts the such Note (or any portion thereof) after the record date Record Date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A common stock Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A common stock Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A common stock Common Stock into which the principal amount of the Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d4) In case the Company shall, by dividend or otherwise, at any time make a distribution distribute to all holders of its Class A common stock exclusively in Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to subsection paragraph (c3) of this SectionSection 2.3) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions made exclusively in cash to all holders of its Class A common stock Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to subsection paragraphs (c3) or (e5) of this Section 2.3 or this subsection paragraph (d) has been made plus (y) the aggregate amount of all Excess Payments in respect of any tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Distribution Record Date and in respect of which no Conversion Price adjustment pursuant to subsections (c) or (e) of this Section or this subsection (d4) has been made, exceeds 12 1/210% of the product of the Current Market Price current market price per share (determined as provided in subsection paragraph (f6) of this SectionSection 2.3) of the Class A common stock Common Stock on the Distribution Record Date multiplied by times the number of shares of Class A common stock Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection paragraph (d4) by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in subsection paragraph (f6) of this SectionSection 2.3) of the Class A common stock Common Stock on the Distribution Record Date less the sum amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share (based on the pro rata portion of the aggregate amount of such cash and other consideration (including any Excess Payments), divided by the aggregate Excess Payments so distributed, paid or payable within such 12-month period (including, without limitation, the distribution in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the distribution in respect of which such adjustment is being made) by the number of shares of Class A common stock Common Stock outstanding on the Distribution Record Date) of Class A Common Stock and the denominator shall be such Current Market Price current market price per share (determined as provided in subsection paragraph (f6) of this SectionSection 2.3) of the Class A common stock Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e5) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of Company for all or any portion of the Class A common stock Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Payment, together with the sum of (x) the aggregate amount of any distributions, by dividend or otherwise, all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Class A common stock Common Stock made in cash (specifically including any distributions of cash out of current or retained earnings of Company) earnings), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment in the Conversion Price pursuant to subsection paragraph (c3) or paragraph (d4) of this Section 2.3 or this subsection paragraph (e) has been made plus (y) the aggregate amount of all Excess Payments in respect of any other tender offers or other negotiated transactions by Company or any of its Subsidiaries for Class A common stock concluded within the 12 months preceding the Purchase Date and in respect of which no adjustment in the Conversion Price pursuant to subsection (c) or (d) of this Section or this subsection (e5) has been made, exceeds 12 1/210% of the product of the Current Market Price current market price per share (determined as provided in subsection paragraph (f6) of this SectionSection 2.3) of the Class A common stock Common Stock on the Purchase Date multiplied by times the number of shares of Class A common stock Common Stock outstanding on the Purchase Date (including any tendered shares but excluding any shares held in the treasury of the Company)) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this subsection paragraph (e5) by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in subsection paragraph (f6) of this SectionSection 2.3) of the Class A common stock Common Stock on the Purchase Date less the sum amount of such Excess Payments and such cash distributions, if any, applicable to one share (based on the pro rata portion of the aggregate amount of cash and the aggregate such Excess Payments so distributedand such cash distributions, paid or payable within such 12 month period (including, without limitation, divided by the Excess Payment in respect of which such adjustment is being made) applicable to one share of Class A common stock (which shall be determined by dividing the sum of the aggregate amount of cash and the aggregate Excess Payments so distributed, paid or payable with respect to outstanding shares of Class A common stock within such 12 months (including, without limitation, the Excess Payment in respect of which such adjustment is being made) by the number of shares of Class A common stock Common Stock outstanding on the Purchase Date) of Class A Common and the denominator shall be such Current Market Price current market price per share (determined as provided in subsection paragraph (f6) of this SectionSection 2.3) of the Class A common stock Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(6) The current market price per share of Class A Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) ten (10) consecutive Business Days ending on the last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
(7) In any case in which this Section 2.3(f) shall require that an adjustment be made immediately following a Record Date, the Company may elect to defer (but only until five (5) Business Days following the filing by the Company with the Trustee of the certificate described in Section 2.3(j) hereof) issuing to the Holder of any Note converted after such Record Date the shares of Class A Common Stock and other Capital Stock of the Company issuable upon such conversion over and above the shares of Class A Common Stock and other Capital Stock of the Company issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence of the right to receive such shares.
(8) Upon the occurrence of a Change of Control, in which both (a) the Company's stockholders receive consideration per share of Class A common stock that is greater than the Conversion Price, without giving effect to the adjustment described below, at the effective time of the Change of Control, and (b) at least 10% of the total consideration paid to the Company's stockholders consists of cash, cash equivalents, securities or other assets (other than publicly traded securities), which are referred to herein as "non-public consideration." In such circumstances, upon conversion of the Notes after the Change of Control, in addition to the Class A Common Stock or other securities deliverable upon the conversion of the Notes as described in the other provisions of this Section 2.3, including clauses (1) through (7) of this Section 2.3(f), the Holder will receive a number of publicly traded securities of the acquiror determined through the following calculation: PV cashflows X (non-public consideration/total consideration) Acquiror stock price Where: PV cashflows = the present value of the aggregate interest payments that would have been payable on the Notes from the date of conversion through February 16, 2004, calculated using a discount rate equal to the yield to maturity of U.S. Treasury securities having a maturity closest to, but not later than, February 16, 2004, Total consideration = the total value of the consideration payable to the Company's stockholders at the effective time of the Change of Control, with the value of any assets or securities other than cash or a publicly traded security being determined in good faith by the Company's Board of Directors based upon an opinion as to that value obtained from an accounting, appraisal or investment banking firm of international standing, Acquiror stock price = the price per security of the acquiror's publicly traded securities delivered in connection with the Change of Control transaction at the effective time of the Change of Control provided, however, that if the consideration received by the Company's stockholders in respect of the Change of Control consists of at least 75% non-public consideration or if the acquiror's common stock is not publicly traded, then upon conversion of the Notes after the Change of Control, in lieu of issuing additional securities of the acquiror, as set forth above, the Holder will be entitled to receive an additional amount in cash calculated as follows: PV cashflows X (non-public consideration/total consideration)
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Sources: First Supplemental Indenture (Adelphia Communications Corp)