Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. (2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company. (3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective. (4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies, 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date. (5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section). (6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith. (7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive. (8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. (9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be. (10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect. (11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 6 contracts
Sources: Indenture (FMC Corp), Indenture (FMC Corp), Indenture (FMC Corp)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders shareholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies, 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 date fixed for the determination of stockholders shareholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders shareholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 5 contracts
Sources: Indenture (Susquehanna Bancshares Inc), Indenture (Susquehanna Capital IV), Indenture (Susquehanna Capital IV)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced so that the same shall equal the price determined by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares of Common Stock constituting such dividend or other distribution, such reduction to become effective immediately after at the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case at any time the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the then current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for such determination shall be reduced so that the same shall equal the price determined by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after at the opening of business on the day following the date fixed for such determination. If; provided, after -------- however, that if an adjustment to the Conversion Price is made and any such date fixed for such determination, any or all of ------- such rights, options or and warrants are not in fact issuedexercised, or are not exercised prior to then a corresponding reversing adjustment of the expiration thereof, the conversion price Conversion Price shall be immediately readjustedmade, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrantson an equitable basis, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or take account of such determination date had not been fixed, as the case may beevent. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after at the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rightsstock, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or (including securities, but excluding any (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cashcash out of the retained earnings of the Company, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in shares issued upon any merger or consolidation to which Section 14.11 1211 applies), 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 close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of DirectorsDirectors of the Company, whose determination shall be conclusive and described in a Company Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 1211 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” ," within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this SectionSection 1204, the current market price per share of Common Stock on any day date shall be calculated by the Company and be deemed to be the average of the daily closing prices Closing Prices Per Share for the five consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days 10 Trading Days before, and ending not later than, the earlier of the day in question and the day before the “ex” date "ex date" with respect to the issuance or distribution requiring such computation. For purposes of this purposeparagraph, the term “ex” "ex date, ," when used with respect to any issuance or distribution, shall mean means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) No adjustment in the Conversion Price shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (7)) would require an increase or decrease of at least one percent in such Conversion Price; provided, however, that any adjustments which by reason -------- ------- of this paragraph (7) 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-thousandth of a share, as the case may be.
(8) The Company may make such reductions in the conversion priceConversion Price, for the remaining term of any series of Securities or any shorter term, in addition to those required by paragraphs (1), (2), (3) and (4) of this SectionSection 1204, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 5 contracts
Sources: Indenture (Thermo Electron Corp), Indenture (Thermo Electron Corp), Indenture (Thermo Electron Corp)
Adjustment of Conversion Price. The conversion price shall be subject to adjustment from time to time as follows:
(1a) In case the Company shall pay or make a dividend or other distribution on any class of its capital stock in shares of the Company in its Common Stock, then the conversion price in effect at the opening of business on the day following the record date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock issued and outstanding at the close of business on the such record date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such . Such reduction to shall become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Companyrecord date.
(2b) In case the Company shall issue rights, options or warrants to all holders of its outstanding shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the record date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan)warrants, then the conversion price in effect at the opening of business on the day following the such record date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the such record date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the such record date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such . Such reduction to shall become effective immediately after the opening of business on the day following such record date. Notwithstanding the date fixed for such determination. Ifforegoing, after any such date fixed for such determination, any such in case the Company shall issue rights, options or warrants ("Stockholder Rights") to all holders of its Common Stock entitling the holders thereof to subscribe for or purchase shares of Common Stock, which rights or warrants (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable and (iii) are also issued in fact issuedrespect of future issuances of Common Stock, in each case until the occurrence of a specified event or events, such Stockholder Rights shall for purposes of this Section 12.4 not be deemed issued or distributed until the occurrence of the earliest of such specified events and the conversion price shall not be reduced until the occurrence of such earliest specified event. If the conversion price is reduced pursuant to this paragraph (b) as a result of any rights, warrants or options that are issued by the Company and if at the end of the period during which such warrants, options, or rights are exercisable, not exercised prior to the expiration thereofall such warrants, options or rights shall have been exercised, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not readjusted to issue any such rights, options or warrants, to the conversion price that what it would have been in effect if had the unexercised rights, options or warrants had never above fraction been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), computed based on the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable actually issued in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rightssuch warrants, options or warrants in respect of shares of Common Stock held in rights, as the treasury of the Companycase may be.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, then the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, converselyreduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the day upon which such subdivision becomes effective before giving effect to such subdivision and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the day such subdivision becomes effective after giving effect to such subdivision. Conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, then the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, increased by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the day upon which such combination becomes effective before giving effect to such combination and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the day such combination becomes effective after giving effect to such combination. Such reduction or increase, as the case may be, to shall become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rightsan issuance, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph paragraphs (1a) and (b) of this Section and paid exclusively in cash or upon the dissolution, liquidation or winding up of the Company or (ivii) any consideration distributed in any merger or consolidation to which Section 14.11 appliesStockholder Rights), 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 the close of business on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the such record date fixed for such determination less minus the then fair market value (as determined by the Board of DirectorsDirectors of the Company, whose determination shall be conclusive and described in a Board Resolution filed with the TrusteeResolution) of the portion of the assets, shares or evidences of indebtedness or assets so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock on such record date. Such adjustment shall become effective immediately prior to the opening of business on the day following such record date.
(e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (d) of this Section) in an aggregate amount that, together with (i) the aggregate amount of any other distributions to all holders of its Common Stock made exclusively in cash within the l2 months preceding the date of payment of such distribution and in respect of which no conversion price adjustment pursuant to paragraph (e) of this Section has been made and (ii) the aggregate of any cash exceeds 10% of the product of the current market price per share of the Common Stock on the date fixed for the determination of stockholders entitled to receive such distribution multiplied by the number of shares of Common Stock outstanding on such date, then 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 paragraph (e) by a fraction of which the numerator shall be the current market price per share of the Common Stock on such date minus the amount of cash so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to . Such reduction shall become effective immediately prior to the opening of business on the day date following the date fixed for the determination payment of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5f) The reclassification of Common Stock into securities other than Common Stock (other than excluding any reclassification upon a merger or consolidation or merger to which Section 14.11 12.12 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the record date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” " within the meaning of paragraph (4d) of this Section). If such reclassification changes the number of outstanding shares of Common Stock, and then such reclassification shall be deemed (bin addition to any effect provided in the previous sentence) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3c) of this Section).
(6g) For No adjustment in the purpose conversion price shall be required unless such adjustment would require an increase or decrease of at least 1% in such price; provided that any computation adjustment which by reason of this paragraph (g) is 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 1/100th of a share, as the case may be. No adjustment in the conversion price shall be required for any increase or decrease in the par value of the Common Stock.
(h) In addition to the adjustments in conversion price required by paragraphs (2a), (b), (c), (d), (e) and (4f) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected Company may from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may its discretion make such reductions decreases in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, price as it considers to be advisable in order to avoid advisable, including for purposes of avoiding or diminish diminishing any Federal income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for Federal income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusivereason.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or i) Notwithstanding any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) other provision of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; providedArticle XIII, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon shall result in zero or in a negative number or shall reduce the issuance conversion price below the then par value per share of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, and any such Holders purported adjustment shall receive rights in addition instead reduce the conversion price to such par value, unless the Common Stock upon then has no par value, in which case such purported adjustment shall instead reduce the conversion of such Securitiesprice to $.01 per share. If Holders The Company hereby covenants not to take any action to increase the par value per share of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock.
(j) For the purpose of any computation in this Article, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders current market price per share of Common Stock on any date shall be deemed to be the average of the closing prices for the 5 consecutive days (on which securities exchanges are open for trading) preceding such date of determination. The closing price for each day shall be the last reported sales price regular way or, if no such separation. If reported sale takes place on such an adjustment day, the average of the reported closing bid and asked prices regular way, in either case as reported for consolidated transactions on the New York Stock Exchange or, if the Common Stock is made not listed or admitted to trading on the New York Stock Exchange, on the principal national securities exchange on which the Common Stock is listed or admitted to trading or, if the Common Stock is not so listed or admitted to trading, on the Nasdaq Stock Market or, if the Common Stock is not so listed or admitted to trading, the average of the closing bid and asked prices (or if closing bid and asked prices or not available, the average of the high bid and low asked prices for such rights are later redeemed, invalidated day) in the over-the-counter market as published by the appropriate regulatory organization or terminated, then a corresponding reversing adjustment will be made if not so published as furnished by any New York Stock Exchange member firm selected from time to time by the Conversion Rate on an equitable basisCompany.
Appears in 4 contracts
Sources: Indenture (Xto Energy Inc), Indenture (Xto Energy Inc), Indenture (Xto Energy Inc)
Adjustment of Conversion Price. The Conversion Price shall be adjusted from time to time by the Issuer if any of the following events occurs:
(1a) In case If the Company shall pay or make Issuer exclusively issues shares of Common Stock as a dividend or other distribution on any class of capital stock shares of the Company in Common Stock, or if the conversion price Issuer effects a share split or share combination, the Conversion Price shall be adjusted based on the following formula: where, CP0 = the Conversion Price in effect at immediately prior to the opening close of business on the day following the date fixed for determination Record Date of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying distribution, or immediately prior to the open of business on the Effective Date of such conversion price by a fraction share split or share combination, as applicable; CP' = the Conversion Price in effect immediately after the close of which business on such Record Date or immediately after the numerator shall be open of business on such Effective Date, as applicable; OS0 = the number of shares of Common Stock outstanding at immediately prior to the close of business on such Record Date or immediately prior to the open of business on such Effective Date, as applicable (before giving effect to any such dividend, distribution, split or combination); and OS' = the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination. Any adjustment made under this clause (a) shall become effective immediately after the close of business on the date fixed Record Date for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective or immediately after the opening open of business on the day following the date fixed Effective Date for such determinationshare split or share combination, as applicable. If, after any such date fixed for determination, If any dividend or distribution of the type described in this clause (a) is declared but not in fact paidso paid or made, the conversion price Conversion Price shall be immediately readjusted, effective as of the date the Board of Directors Issuer determines not to pay such dividend or distribution, to the conversion price Conversion Price that would have been then be in effect if such determination date dividend or distribution had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Companydeclared.
(2b) In case If the Company shall issue Issuer issues to all or substantially all holders of the Common Stock any rights, options or warrants to all holders entitling them, for a period of its Common Stock entitling them not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the current market price per share (determined as provided in paragraph (6) average of this Section) the Last Reported Sale Prices of the Common Stock on for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date fixed for the determination of stockholders entitled to receive announcement of such rights, options or warrants (other than pursuant to a dividend reinvestment plan)issuance, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies, the conversion price Conversion Price shall be adjusted so that based on the same shall equal following formula: where, CP0 = the price determined by multiplying the conversion price Conversion Price in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed Record Date for such determination less issuance; CP' = the then fair market value (as determined by Conversion Price in effect immediately after the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening close of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of Record Date; OS0 = the number of shares of Common Stock outstanding immediately prior to such reclassification into the number close of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place business on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.Record Date;
Appears in 4 contracts
Sources: Note Purchase Agreement (ATI Physical Therapy, Inc.), Note Purchase Agreement (ATI Physical Therapy, Inc.), Note Purchase Agreement (ATI Physical Therapy, Inc.)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock Capital Stock of the Company in Common Stockshares of common stock, the conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock common stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for or such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all or substantially all holders of its Common Stock shares of common stock entitling them to subscribe for or purchase shares of Common Stock common stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock shares of common stock on the date fixed for the determination of stockholders shareholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock common stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that common stock which the aggregate of the offering subscription price of the total number of shares of Common Stock common stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock common stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock common stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any In the event that all of the shares of common stock subject to such date fixed for such determination, any such rights, options rights or warrants are have not in fact issuedbeen issued when such rights or warrants expire, or are not exercised prior to the expiration thereof, then the conversion price shall promptly be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, readjusted to the conversion price that which would have been then be in effect if had the unexercised rights, options adjustment upon the issuance of such rights or warrants had never been granted made on the basis of the actual number of shares of common stock issued upon the exercise of such rights or such determination date had not been fixed, as the case may bewarrants. For the purposes of this paragraph (2), the number of shares of Common Stock 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 Common Stockcommon stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock common stock held in the treasury treasury, if any, of the Company.
(3) In case the outstanding shares of Common Stock common stock shall be subdivided into a greater number of shares of Common Stockshares, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock common stock shall each be combined into a smaller number of shares of Common Stockshares, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock shares of common stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding any (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, not prohibited by Section 4.06 hereof and (iii) any dividend or distribution referred to in paragraph (1l) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date day fixed for the determination of stockholders shareholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock shares of common stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, Directors of the Company (whose determination shall be conclusive and described in a resolution of the Board Resolution of Directors of the Company filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable allocable to one share of Common Stock common stock and the denominator shall be such current market price per share of the Common Stockshares of common stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification In case the shares of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) common stock shall be deemed to involve (a) changed into the same or a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the different number of shares of Common Stock outstanding immediately prior to such reclassification into the number any class or classes of shares of Common Stock outstanding immediately thereafter stock, whether by capital reorganization, reclassification, or otherwise (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such other than a subdivision or combination becomes effective” within the meaning of shares or a stock dividend described in paragraph (l) or paragraph (3) of this Section, or a consolidation, merger or sale of assets described in Section 11.10), then and in each such event the Holders of Securities shall have the right thereafter to convert such Securities into the kind and amount of shares of stock and other securities and property receivable upon such reorganization, reclassification or other change, by holders of the number of shares of common stock into which such Securities might have been converted immediately prior to such reorganization, reclassification or change.
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock common stock on any day date shall be deemed to be the average of the daily closing prices Closing Prices for the five 15 consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 30 and not less than 20 trading days before, and ending not later than, the earlier of the day in question and the day Business Days before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithquestion.
(7) No adjustment in the conversion price shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (7)) would require an increase or decrease of at least 1% in such price; provided, however, that any adjustments which by reason of this paragraph (7) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this paragraph (7) shall be made to the nearest cent.
(8) The Company may may, but shall not be required to, make such reductions in the conversion price, in addition to those required by paragraphs (1l), (2), (3) and (4) of this Section, as it the Company's Board of Directors considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock common stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company Company's Board of Directors shall have the power to resolve any ambiguity or correct any error in the adjustments made pursuant to this section Section 11.04 and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent for a transaction referred to in such conversion price; provided, however, that any adjustment which by reason paragraphs (1) through (5) of this paragraph (9) is not required Section if the Company, in its sole discretion, permits Holders to be made shall be carried forward participate in the transaction upon a basis and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest 1/10,000 of a share, with such notice as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would determines to be fair and adequate relative to the participation by, and notice to, holders of Common Stock. No adjustment in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained required for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights change in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares par value of Common Stock received upon conversion and the Conversion Rate, or a change in such case, will be adjusted as though such rights were being distributed stock from par value to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basisstock without par value.
Appears in 4 contracts
Sources: Indenture (Sizeler Property Investors Inc), Indenture (Sizeler Property Investors Inc), Indenture (Sizeler Property Investors Inc)
Adjustment of Conversion Price. (1a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in the form of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction the numerator of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (19.5(a), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2b) In case the Company shall issue rights, options options, or warrants to all holders of its Common Stock (not being available on an equivalent basis to ▇▇▇▇▇▇ upon conversion) entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (of the Common Stock, determined as provided in paragraph (6) of this Section) of the Common Stock 9.5(f), on the date fixed for the determination of stockholders entitled to receive such rights, options options, or warrants (other than pursuant to a dividend reinvestment plan), the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for such determination shall be reduced to a price (calculated to the nearest cent) determined by multiplying such conversion price Conversion Price by a fraction the numerator of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of consideration received by the offering price of Company for the total number of additional shares of Common Stock so offered for subscription or purchase would purchase at the Conversion Price in effect immediately prior to the date fixed for such current market price determination and the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after at the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (29.5(b), the number of shares of 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 Common Stock. The Company will not issue any rights, options options, or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company shall, by dividend dividend, redemption, stock purchase or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options options, or warrants referred to in paragraph (2) of this Section9.5(b), (ii) any dividend or distribution paid exclusively in cash, (iii) cash and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies9.5(d)), the conversion price Conversion Price shall be adjusted so that the same shall to equal the price determined by multiplying the conversion price Conversion Price in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction the numerator of which the numerator shall be the current market price per share (share, determined as provided in paragraph (6) of this Section) 9.5(f), of the Common Stock on the date fixed for such determination less the then fair market value (as determined in good faith by an independent majority of the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such the current market price per share share, determined as provided in paragraph 9.5(f), of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5e) The reclassification of Common Stock into securities including securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 9.11 applies) shall be deemed to involve (ai) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “the "date fixed for such determination” " within the meaning of paragraph (4) of this Section9.5(c), and (bii) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section)thereafter.
(6f) For the purpose of any computation under paragraphs 9.5(c), (2) d), and (4) of this Sectione), the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing prices Closing Prices for the five (5) consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 twenty (20) trading days before, and ending not later than, the earlier of the day in question and the day before the “"ex” " date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price "Closing Price" for each trading day shall be the reported last sale price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on such date as reported in composite transactions for the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the National Association of Securities Dealers Automated Quotations system ("Nasdaq") National Market System ("Nasdaq National Market") or, if not listed or admitted to trading on Nasdaq National Market, on Nasdaq, or, if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or Nasdaq National Market or quoted on Nasdaq, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors Company for that purpose or purpose, or, if the Common Stock does not have any closing bid and asked prices in the absence over-the-counter market during the relevant period of any such quotationstime, the fair market value per share as determined in good faith by an independent majority of the Board of Directors in good faith.
(7) The Company may make such reductions in as of the conversion price, in addition most recent available month-end determined pursuant to those required by paragraphs (1), (2), (3) and (4) GAAP. For purposes of this Sectionparagraph, as it considers to be advisable in order to avoid or diminish any income tax the term "`ex' date," when used with respect to any holders of shares of Common Stock resulting from any dividend issuance or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company distribution, shall have mean the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment first date on which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of trades regular way on such Securities. If Holders of the Securities of a series that is convertible exercise exchange or in such market without the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated issuance or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basisdistribution.
Appears in 3 contracts
Sources: National Marketing and Distribution Agreement (Retractable Technologies Inc), National Marketing and Distribution Agreement (Retractable Technologies Inc), National Marketing and Distribution Agreement (Retractable Technologies Inc)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the earned surplus of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall all be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 15.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “the "date fixed for such determination” " within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “such "the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ie., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “"ex” " date with respect to the issuance or distribution requiring such computation. For this purpose, the term “"`ex” ' date", when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the Nasdaq Stock Market or, if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or quoted on the Nasdaq Stock Market, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithpurpose.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to in this section paragraph (7) and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment adjustments which by reason of this paragraph (9) 8) is 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 1/10,000 1/100 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 3 contracts
Sources: Indenture (Philadelphia Suburban Corp), Indenture (Jefferies Group Inc /De/), Indenture (Philadelphia Suburban Corp)
Adjustment of Conversion Price. No adjustment will be made to the Conversion Price or the Company Conversion Threshhold (1each, a "Conversion Amount") other than as described in this Article. The Conversion Amount shall be subject to adjustments from time to time as follows:
(a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock its Common Shares payable in Common Stock to all holders of the Company in its Common Stock, the conversion price Conversion Amount in effect at the opening of business on the day Business Day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Amount by a fraction of which the numerator shall be the number of shares of Common Stock Shares outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day Business Day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1a), the number of shares of Common Stock Shares 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 Common StockShares. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the CompanyShares that have not been issued.
(2b) In case the Company shall issue rights, options or warrants to all holders of its Common Stock Shares entitling them to subscribe for or purchase shares of any class of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6h) of this Section) of the such class of Common Stock on the date fixed for the determination of stockholders shareholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price Conversion Amount in effect at the opening of business on the day Business Day following the date fixed for such determination shall be reduced by multiplying such conversion price Conversion Amount by a fraction of which the numerator shall be the number of shares of Common Stock Shares outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock Shares outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2b), the number of shares of Common Stock Shares 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 Common StockShares. The Company will not issue any rights, options or warrants in respect of shares of Common Stock Shares held in the treasury of the Company. In the event that such rights, warrants or options are not so issued, the Conversion Amount shall again be adjusted to be the Conversion Amount which would then be in effect if such date fixed for the determination of shareholders entitled to receive such rights, warrants or options had not been fixed. In determining whether any rights, warrants or options entitle the holders to subscribe for or purchase Common Shares at less than such current market price, and in determining the aggregate offering price of such Common Shares, there shall be taken into account any consideration received by the Company for such rights, warrants or options, the value of such consideration, if other than cash, to be determined by the Board of Directors whose determination shall be conclusive and binding.
(3c) In case outstanding shares of Common Stock Shares shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reducedShares, and, conversely, in case outstanding shares of Common Stock Shares shall each be combined into a smaller number of shares of Common StockShares, the conversion price Conversion Amount in effect at the opening of business on the day Business Day following the day upon which such subdivision or combination becomes effective shall be proportionately increasedadjusted by the Company so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the effectiveness of the Conversion Amount adjustment contemplated by this paragraph (c) by a fraction of which the numerator shall be the number of Common Shares outstanding immediately prior to such subdivision or combination and the denominator shall be the number of Common Shares outstanding immediately after giving effect to such subdivision or combination, such reduction or increase, as the case may be, adjustment to become effective immediately after the opening of business on the day Business Day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, Shares or shares of any class of its capital stock or rightsstock, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2b) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1a) of this Section Section, and (iv) any consideration distributed in any merger merger, consolidation or consolidation other transaction to which Section 14.11 1218 applies), the conversion price Conversion Amount shall be adjusted reduced so that the same shall equal the price determined by multiplying the conversion price Conversion Amount in effect immediately prior to the close of business on the date fixed for the determination of stockholders shareholders entitled to receive such distribution by a fraction of which (i) the numerator shall be the current market price per share (determined as provided in paragraph (6h) of this Section) of the Common Stock Shares on the third Trading Day prior to the date fixed for such determination (such third Trading Day being the "Reference Date") less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with Resolution) on the Trustee) Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock Share and the denominator shall be such the current market price per share of Common Share on the Common StockReference Date, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Date.
(e) In case the Company shall, by dividend or otherwise, distribute to all holders of Common Shares cash (excluding any cash that is distributed upon a merger or consolidation to which Section 1218 applies or as part of a distribution referred to in paragraph (d) of this Section) in an aggregate amount that, combined together with (i) the aggregate amount of any other cash distributions to all holders of Common Shares made exclusively in cash within the 12 months preceding the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any payment of such distribution is not and in fact made, respect of which no adjustment pursuant to this paragraph (e) has been made and (ii) the conversion price shall be immediately readjusted effective as aggregate of any cash plus the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determineddetermined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its Subsidiaries for all or any portion of Common Shares concluded within the evidences 12 months preceding the date of indebtednesspayment of such distribution and in respect of which no adjustment pursuant to paragraph (f) of this Section has been made, shares exceeds 12.5% of any class the product of capital stock or other property so distributed is the current market price per Common Share on the date for the determination of holders of Common Shares entitled to receive such distribution times the number of Common Shares outstanding on such date, then, and in each such case, immediately after the close of business on such date for determination, the Conversion Amount in effect immediately prior to the close of business on the date fixed for determination of the shareholders entitled to receive such distribution shall be reduced by a fraction (1) the numerator of which shall be equal to or greater than the current market price per share (determined as provided in paragraph (h) of this Section) of the Common Stock Shares on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined amount in (i) and (ii) above over such 12.5% and (y) the number of Common Shares outstanding on such date, date for determination and (2) the denominator of which shall be equal to the current market price per share (determined as provided in lieu paragraph (h) of this Section) of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security Common Shares on such datedate of determination.
(5f) In case a tender or exchange offer (other than an odd-lot offer) made by the Company or any Subsidiary for all or any portion of the Common Shares shall expire and such tender or exchange offer shall involve the payment by the Company or such Subsidiary of consideration per Common Share having a fair market value (as determined 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 Common Share (determined as provided in paragraph (h) of this Section) as of the Trading Day next succeeding the Expiration Time, the Conversion Amount shall be reduced so that the same shall equal the price determined by multiplying the Conversion Amount in effect immediately prior to the effectiveness of the Conversion Amount reduction contemplated by this paragraph (f) by a fraction of which the numerator shall be the product of the number of Common Shares outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the respective current market price per Common Share (determined as provided in paragraph (h) of this Section) on the Trading Day next succeeding the Expiration Time and the denominator shall be the sum of (i) 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 (ii) the product of the number of shares of each class of Common Stock outstanding (less any Purchased Shares) at the Expiration Time and the respective current market price per share (determined as provided in paragraph (h) of this Section) of each such Common Shares on the Trading Day next succeeding the Expiration Time, such reduction to become effective immediately prior to the opening of business on the Trading day following the Expiration Time.
(g) The reclassification of any Common Stock Shares into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 1218 applies) shall be deemed to involve (ai) a distribution of such securities other than Common Stock to all holders of Common Stock Shares (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders shareholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4d) of this Section), and (bii) a subdivision or combination, as the case may be, of the number of shares of Common Stock Shares outstanding immediately prior to such reclassification into the number of shares of Common Stock Shares outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3c) of this Section).
(6h) For the purpose of any computation under paragraphs (2b), (d), (e) and or (4f) of this SectionSection 1210, the current market price per share of a class of Common Stock on any day date shall be calculated by the Company and be deemed to be the average of the daily closing prices Closing Sale Prices per share of such class for the five consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days 10 Trading Days before, and ending not later than, the earlier of the day in question and the day before the “"ex” " date with respect to the issuance or distribution requiring such computation. For purposes of this purposeparagraph, the term “"`ex” ' date", when used with respect to any issuance or distribution, shall mean means the first date on which the such class of Common Stock trades regular way in the applicable securities market or on the applicable securities exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7i) No adjustment in the Conversion Amount shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (i)) would require an increase or decrease of at least one percent in such price; provided, however, that any adjustments which by reason of this paragraph (i) 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.
(j) With the prior consent of The Toronto Stock Exchange, the Company at its option may make such reductions in the conversion priceConversion Amount, for the remaining term of the Debentures or any shorter term, in addition to those required by paragraphs (1), a) through (2), (3) and (4f) of this SectionSection 1210, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock Shares resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9k) No adjustment in to the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article Conversion Amount shall be made to the nearest cent or to the nearest 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period event referred to in paragraphs (a) through (f) of time of at least twenty (20) daysSection 1210, the decrease being irrevocable during such period, provided if the Board of Directors shall have made a determination Directors, acting reasonably and in good faith, determines that such decrease would be the Holder will participate in the best interests event on a basis that is fair and appropriate in light of the Company, basis on which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on Shares participate in the date of event;, such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made participation subject to the Conversion Rate on an equitable basisprior consent of The Toronto Stock Exchange.
Appears in 3 contracts
Sources: Convertible Subordinated Debenture (Hub International LTD), Convertible Subordinated Debenture (Hub International LTD), Debenture (Hub International LTD)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the earned surplus of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall all be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 15.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and the “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and such “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e .i.e., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “‘ex” ’ date”, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the Nasdaq Stock Market or, if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or quoted on the Nasdaq Stock Market, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithpurpose.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to in this section paragraph (7) and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment adjustments which by reason of this paragraph (9) 8) is 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 1/10,000 1/100 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 3 contracts
Sources: Subordinated Securities Agreement (Aqua America Inc), Subordinated Securities Agreement (Aqua America Inc), Subordinated Securities Agreement (Aqua America Inc)
Adjustment of Conversion Price. The Conversion Price shall be adjusted from time to time by the Company as follows:
(1i) In case the Company Group shall (A) pay or make a dividend or other distribution on any class in shares of capital stock its Common Stock to all holders of the Company in its Common Stock, (B) make a distribution in shares of its Common Stock to all holders of its Common Stock, (C) subdivide or split its outstanding Common Stock into a larger number of shares, or (D) combine its outstanding Common Stock into a smaller number of shares, the conversion price Conversion Price in effect at immediately prior thereto shall be adjusted so that the opening Holder of business on the day following the date fixed any Note thereafter surrendered for determination of stockholders conversion shall be entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the that number of shares of Group’s Common Stock outstanding at that it would have owned or been entitled to receive had such Note been converted immediately prior to the happening of such event. An adjustment made pursuant to this Section 4(e)(i) shall become effective as of the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the record date fixed for the determination of stockholders entitled to receive such dividend or distribution in the case of a dividend in shares or distribution in shares and shall become effective as of the close of business on the effective date in the case of a subdivision, split or combination. If any dividend or distribution of the type described in this Section 4(e)(i) is declared but not so paid or made, the Conversion Price shall again be adjusted to the Conversion Price that would then be in effect if such dividend or distribution had not been declared.
(ii) In case (A) Group shall issue rights, options or warrants to all or substantially all holders of its 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 its Common Stock (or securities convertible into its Common Stock) at a price per share less than the Current Market Price at the record date fixed for the determination of stockholders entitled to receive such rights or warrants or (B) Group shall sell or issue any shares of its Common Stock and the consideration per share of Group’s Common Stock to be paid upon such sale or issuance is less than the Current Market Price or Group shall sell or issue warrants, options, rights or other convertible securities to subscribe for or purchase shares of its Common Stock at a price per share less than pursuant to a dividend reinvestment plan)the Current Market Price on the date of such sale or issuance, the conversion price Conversion Price in effect at immediately prior to the opening close of business on the day following the record date fixed for such determination or issue date thereto shall be reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on such conversion price record date or issue date (as the case may be) by a fraction fraction, the numerator of which the numerator shall be the number of shares of Group’s Common Stock outstanding at the close of business on such record date or issue date (as the date fixed for such determination case may be), plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Group’s Common Stock so offered for subscription (or purchase the aggregate conversion price of the convertible securities so offered) would purchase at such current market price Current Market Price, and the denominator of which shall be the number of shares of Group’s Common Stock outstanding at the close of business on such record date or issue date (as the case may be) plus the number of additional shares of Group’s Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustment shall be made successively whenever any such rights, options, warrants or convertible securities are issued, and shall become effective as of the close of business on such record date fixed for or issue date (as the case may be). To the extent that shares of Group’s Common Stock are not delivered after the expiration of such determination plus rights, options or warrants, the Conversion Price shall be adjusted to the Conversion Price that would then be in effect had the reduction made upon the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Group’s Common Stock so offered for subscription or purchase, such reduction to become effective immediately after actually delivered. In the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any event that such rights, options or warrants are not in fact so issued, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such record date had not been fixed. In determining whether any rights, options or are not exercised prior warrants entitle the holders to subscribe for or purchase shares of Group’s Common Stock at less than such Current Market Price, and in determining the expiration thereofaggregate offering price of such shares of Group’s Common Stock, the conversion price there shall be immediately readjusted, effective as taken into account the fair market value of the date any consideration received by Group for such rights, options or warrants expire, and any amount payable on exercise or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Companythereof.
(3iii) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company Group shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtednessStock, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to then, in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliessuch case, the conversion price Conversion Price shall be adjusted reduced so that the same shall equal the price determined by multiplying the conversion price Conversion Price in effect immediately prior to the close of business on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction fraction, the numerator of which shall be Current Market Price on such record date less the numerator amount of cash so distributed (and not excluded as provided above) applicable to one share of Group’s Common Stock and the denominator shall be the current market price per share (determined Current Market Price on such record date. Such reduction shall become effective as provided in paragraph (6) of this Section) of the Common Stock close of business on such record date; provided that, in the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of event the portion of the assets, shares or evidences of indebtedness cash so distributed applicable to one share of Group’s Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock Current Market Price on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion conversion, in addition to the shares of Group’s Common Stock issuable upon such conversion, the amount of such evidences of indebtedness, shares of any class of capital stock or other property cash such Holder would have received had such Holder converted each Security such 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 that 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(e)(iii) 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(e)(iii) as a result of a distribution that is not a regular dividend, such adjustment shall be based upon the full amount of the distribution.
(5iv) The reclassification In case Group shall distribute to all or substantially all holders of its Common Stock into securities any of Group’s shares, interests, participations or other equivalents (however designated, whether voting or non-voting) in equity, whether outstanding on the Issue Date or issued thereafter, including all preferred stock of Group (the “Capital Stock”) (other than Group’s Common Stock), evidences of indebtedness or other non-cash assets (including securities of any Person), or shall distribute to all holders of its Common Stock rights, options or warrants to subscribe for or purchase any of its securities (excluding those referred to in Section 4(e)(ii)) (any of the foregoing hereinafter referred to as the “Distributed Securities”), then in each such case the Conversion Price in effect immediately prior to the close of business on the record date for the determination of stockholders entitled to receive such Distributed Securities shall be reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect as of the close of business on such record date by a fraction, the numerator of which shall be the Current Market Price on such record date less the fair market value on such record date of the portion of the Distributed Securities applicable to one share of Group’s Common Stock (other determined on the basis of the number of shares of Group’s Common Stock outstanding on the record date), and the denominator of which shall be the Current Market Price on such record date. Such reduction shall become effective as of the close of business on such record date; provided, that the then fair market value of the portion of the Distributable Securities so distributed applicable to one share of Group’s Common Stock is equal to or greater than the Current Market Price on such record date, in lieu of making the foregoing reduction, adequate provision shall be made so that each Holder of a Note receives at such time, or shall have the right to receive upon such conversion, in addition to the shares of Group’s Common Stock issuable upon such conversion, the amount of Distributed Securities such Holder would have received had such Holder converted such Note on such record date. In the event that such distribution is not so 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. If the Board of Directors determines the fair market value of any reclassification upon distribution for purposes of this Section 4(e)(iv) 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. Rights, options or warrants distributed by Group to all holders of Group’s Common Stock entitling the holders thereof to subscribe for or purchase shares of Group’s Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a consolidation specified event or merger events (each a “Trigger Event”): (A) are deemed to which be transferred with such shares of Group’s Common Stock, (B) are not immediately exercisable and (C) are also issued in respect of future issuances of Group’s Common Stock, shall be deemed not to have been distributed for purposes of this Section 14.11 applies4(e) (and no adjustment to the Conversion Price under this Section 4(e) shall be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to involve have been distributed and an appropriate adjustment (aif any is required) a distribution to the Conversion Price shall be made under this Section 4(e)(iv). If any such right, option or warrant, including any such existing right, option or warrant distributed prior to the Issue Date, is subject to events, upon the occurrence of which such securities right, option or warrant becomes exercisable to purchase different securities, evidences of indebtedness or other than Common Stock to all holders of Common Stock (and non-cash assets, then the effective date of the occurrence of any and each such reclassification event shall be deemed to be the date of distribution and record date with respect to new rights, options or warrants with such rights (and a termination or expiration of the existing rights, options or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Price under this Section 4(e) was made, (A) in the case of any such rights, options or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion 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 Group’s Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Group’s Common Stock as of the date of such redemption or repurchase and (B) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Price shall be readjusted as if such rights, options and warrants had not been issued. No adjustment of the Conversion Price shall be made pursuant to this Section 4(e)(iv) in respect of rights, options or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights, options or warrants are actually distributed, or reserved by Group for distribution, to any Holder upon conversion by such Holder of a Note to shares of Group’s Common Stock. For purposes of this Section 4(e)(iv) and Sections 4(e)(i) and (ii), any dividend or distribution to which this Section 4(e)(iv) is applicable that also includes shares of Group’s Common Stock, or rights, options or warrants to subscribe for or purchase shares of Group’s Common Stock (or both), shall be deemed instead to be (A) a dividend or distribution of the evidences of indebtedness, non-cash assets or shares of Group’s Capital Stock other than such shares of Group’s Common Stock (and any Conversion Price reduction required by this Section 4(e)(iv) with respect to such dividend or distribution shall then be made) immediately followed by (B) a dividend or distribution of such shares of Group’s Common Stock or such rights, options or warrants (and any further Conversion Price reduction required by Sections 4(e)(i) and (ii) with respect to such dividend or distribution shall then be made), except “the record date for the determination of stockholders entitled to receive such Distributed Securities” shall be substituted as “the record date fixed for the determination of stockholders entitled to receive such dividend or distribution” and “the record date fixed for the determination of stockholders entitled to receive such determinationrights, options or warrants” within the meaning of paragraph Sections 4(e)(i) and (4ii).
(v) In case a tender or exchange offer made by Group or any subsidiary of Group for all or any portion of Group’s Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall involve the payment by Group or such subsidiary to stockholders of consideration per share of Group’s Common Stock having a fair market value (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 the Current Market Price on the Trading Day next succeeding the Expiration Time, the Conversion Price shall be reduced so that the same shall equal the Conversion Price determined by multiplying the Conversion Price in effect immediately prior to the Expiration Time by a fraction, the numerator of which shall be the number of shares of Group’s Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Current Market Price on the Trading Day next succeeding the Expiration Time, and the denominator of which shall be the sum of (A) 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 tender or exchange offer) of this Section)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 (bB) a subdivision or combination, as the case may be, product of the number of shares of Group’s Common Stock outstanding (less any Purchased Shares) at the Expiration Time and the Current Market Price on the Trading Day next succeeding the Expiration Time, such reduction to become effective immediately prior to the opening of business on the Trading Day next succeeding the Expiration Time. In the event that Group or such reclassification into the number of subsidiary is obligated to purchase shares of Group’s Common Stock outstanding immediately thereafter (and the effective date of pursuant to any such reclassification shall be deemed to be “the day upon which tender or exchange offer, but Group or such subdivision becomes effective” subsidiary is permanently prevented by applicable law from effecting any such purchases or “the day upon which all such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Sectionpurchases are rescinded, the current market price per share of Common Stock on any day Conversion Price shall again be deemed adjusted to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights Price that would otherwise then be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in effect if such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated tender or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.exchange off
Appears in 3 contracts
Sources: Purchase Agreement (Covad Communications Group Inc), Convertible Note (Earthlink Inc), Senior Secured Convertible Note (Covad Communications Group Inc)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders shareholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies, 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 date fixed for the determination of stockholders shareholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with delivered to the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders shareholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with delivered to the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rateconversion rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 3 contracts
Sources: Indenture (BMP Sunstone CORP), Indenture (BMP Sunstone CORP), Indenture (BMP Sunstone CORP)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the earned surplus of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall all be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 15.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “the "date fixed for such determination” " within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “such "the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ie., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “"ex” " date with respect to the issuance or distribution requiring such computation. For this purpose, the term “"'ex” ' date", when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the Nasdaq Stock Market or, if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or quoted on the Nasdaq Stock Market, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithpurpose.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to in this section paragraph (7) and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment adjustments which by reason of this paragraph (9) 8) is 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 1/10,000 1/100 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 3 contracts
Sources: Indenture (Aqua America Inc), Subordinated Securities Agreement (Aqua America Inc), Indenture (Aqua America Inc)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the earned surplus of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 15.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e .i.e., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “"ex” " date with respect to the issuance or distribution requiring such computation. For this purpose, the term “"`ex” ' date", when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the Nasdaq Stock Market or, if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or quoted on the Nasdaq Stock Market, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithpurpose.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section paragraph (7) and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) 8) is 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 1/10,000 1/100 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 2 contracts
Sources: Indenture (Intermagnetics General Corp), Indenture (Top Tankers Inc.)
Adjustment of Conversion Price. Subject to the requirements of the OTCQB and the CSE (or any other Recognized Stock Exchange on which the Common Shares are then listed), the Conversion Price in effect at any date shall be subject to adjustment from time to time as set forth below.
(a) If and whenever at any time prior to the Time of Expiry the Corporation shall (i) subdivide, redivide or change the outstanding Common Shares into a greater number of shares, (ii) reduce, combine or consolidate the outstanding Common Shares into a smaller number of shares, or (iii) issue Common Shares or securities convertible into Common Shares to the holders of all 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 4.6(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 record date by a fraction: (1) In the denominator of which shall be the number of 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 Company number of Common Shares that would have been outstanding had such securities been exchanged for or converted into Common Shares on such record date, assuming in any case where such securities are not then convertible or exchangeable but subsequently become 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 pay 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 this Section 4.6 shall occur. Any such issue of Common Shares or make securities convertible into Common Shares by way of a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced 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 (d) of this Section 4.6.
(b) If and whenever at any time prior to the Time of Expiry the Corporation shall fix 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, 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 conversion price record date by a fraction 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 number of shares Current Market Price per Common Share on such record date minus the amount in cash per Common Share distributed to holders of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after extent that any such date fixed for determination, any cash dividend or distribution is not in fact paid, the conversion price Conversion Price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, re-adjusted to the conversion price that Conversion Price which would have been then be in effect if such determination record date had not been fixed. For the purposes of this paragraph .
(1), the number of shares of Common Stock c) If and whenever at any time outstanding prior to the Time of Expiry the Corporation shall not include shares held in fix a record date for the treasury issuance of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Stock Shares entitling them them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase shares of Common Stock Shares (or securities convertible into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the current market price per share (determined as provided in paragraph (6) of this Section) 95% of the Current Market Price of a Common Stock Share on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan)record date, the conversion 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 at the opening of business on the day following the such record date fixed for such determination shall be reduced by multiplying such conversion price by a fraction fraction, of which the numerator shall be the total number of shares Common Shares outstanding on such record date plus a number of Common Stock outstanding at the close of business on the date fixed for such determination plus Shares equal to the number of shares of Common Stock that arrived at by dividing the aggregate of the offering price of the total number of shares of additional Common Stock so Shares offered for subscription or purchase would purchase at (or the aggregate conversion or exchange price of the convertible securities so offered) by such current market price Current Market Price per Common Share, and of which the denominator shall be the total number of shares of Common Stock Shares outstanding at the close of business on the such record date fixed for such determination plus the total number of shares of additional Common Stock so Shares offered for subscription or purchase, purchase (or into which the convertible securities so offered are convertible). Such adjustment shall be made successively whenever such reduction to become effective immediately after a record date is fixed. To the opening of business on the day following the date fixed for such determination. If, after extent that any such date fixed for such determinationoptions, any such rights, options rights or warrants are not in fact issuedso issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the conversion price Conversion Price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, re-adjusted to the conversion price that Conversion Price which would have been then be in effect if the unexercised rights, options or warrants had never been granted or such determination record date had not been fixedfixed 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. For .
(d) If and whenever at any time prior to the purposes Time of this paragraph Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 4.6(a) or a consolidation, amalgamation, arrangement, binding share exchange, merger of the Corporation with or into any other Person or other entity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other Person (2)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 and Warrants comprising the Units 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 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 Common Stock. The Company will not issue any rightsShares receive pursuant to such liquidation, options dissolution or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increasewinding-up, as the case may be, that such holder of a Debenture would have been entitled to become effective immediately after the opening of business 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 day following record date or the day date of this Indenture, as the case may be, the holder had been the registered holder of the number of Common Shares and Warrants comprising the Units 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 4.6(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 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 4.6(d) shall be a supplemental indenture entered into pursuant to the provisions of Section 12.4. Any indenture entered into between the Corporation, any successor to the Corporation or such subdivision purchasing Person or combination becomes effectiveother 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 4.6(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances.
(4e) In case If the Company shall, by dividend or otherwise, distribute Corporation shall make a distribution to all holders of its Common Stock Shares of shares in the capital of the Corporation, other than Common Shares, or evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) indebtedness or other property assets of the Corporation, including securities (including cash or assets or securities, but excluding (ix) any rights, options issuance of rights or warrants referred for which an adjustment was made pursuant to in paragraph Section 4.6(c), and (2) of this Section, (iiy) any dividend or distribution paid exclusively in cashcash for which an adjustment was made pursuant to Section 4.6(b)(the “Distributed Securities”), then in each such case (iii) any unless the Corporation distributes such Distributed Securities to the holders of Debentures on such dividend or distribution referred date (as if each holder had converted such Debenture into Common Shares immediately preceding the record date with respect to such distribution)) the Conversion Price in paragraph (1) of this Section and (iv) any consideration distributed in any merger effect immediately preceding the ex-distribution date fixed for the dividend or consolidation to which Section 14.11 applies, the conversion price distribution shall be adjusted so that the same shall equal the price determined by multiplying the conversion price Conversion Price in effect immediately preceding such 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 close ex-distribution date and of which the numerator shall be the VWAP for the Common Shares for the first five consecutive trading days that occur immediately following the ex-distribution date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective five Business Days immediately following the ex-distribution 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 that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if the securities distributed by the Corporation to all holders of its Common Shares consist of capital stock of, or similar equity interests in, a Subsidiary or other business of the Corporation (the “Spinoff Securities”), the Conversion Price shall be adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the record date fixed for the determination of stockholders shareholders entitled to receive such distribution by a fraction fraction, the denominator of which the numerator shall be the current 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 the CSE, or such other national or regional exchange or market on which the Common Shares are then listed or quoted and (B) the product of: (i) the weighted average trading price per share (determined calculated in substantially the same way as provided in paragraph (6the Current Market Price is calculated for the Common Shares) of this Section) over the Spinoff Valuation Period of the Common Stock on Spinoff Securities or, if no such prices are available, the date fixed for such determination less Fair Market Value of the then fair market value Spinoff Securities (as determined by the Board of Directors, whose which determination shall be conclusive and described in a Board Resolution filed with shall be evidenced by an Officer’s Certificate delivered to the Trustee) multiplied by (ii) the number of the portion Spinoff Securities distributed in respect of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock Share and the denominator numerator of which shall be such current market price per share of the VWAP for the Common StockShares for the Spinoff Valuation Period, such adjustment to become effective immediately prior 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 with respect to such distribution.
(f) If any issuer bid made by the Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a Fair Market Value (determined as provided below) that exceeds the Current Market Price per Common Share on the last date (the “Expiration Date”) tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), the Conversion Price shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which: (i) the denominator shall be the sum of (A) the Fair Market Value of the aggregate consideration (which determination shall be conclusive evidence of such Fair Market Value and which shall be evidenced by an Officer’s Certificate delivered to the Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the issuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the Common Shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Common Shares”) and (B) the product of the number of Common Shares outstanding (less any Purchased Common Shares and excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time and the Current Market Price per Common Share on the Expiration Date and (ii) the numerator of which shall be the product of the number of Common Shares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price per Common Share on the Expiration Date, such increase to become effective immediately preceding the opening of business on the day following the date fixed for Expiration Date. In the determination of stockholders entitled event that the Corporation is obligated to receive such distribution. If, after purchase Common Shares pursuant to any such date fixed for determinationissuer bid, but the Corporation is permanently prevented by applicable law from effecting any or all such distribution is not in fact madepurchases or any or all such purchases are rescinded, the conversion price Conversion Price shall again be immediately readjusted effective as of adjusted to be the date that the Board of Directors determines not to make such distribution, to the conversion price that Conversion Price which would have been in effect based upon the number of Common Shares actually purchased, if such determination date had not been fixedany. In If the event the then fair market value application of this clause (as so determinedf) of Section 4.6 to any issuer bid would result in a decrease in the portion of the evidences of indebtednessConversion Price, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision no adjustment shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph issuer bid under this clause (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Sectionf).
(6g) For the purpose of In any computation under paragraphs (2) and (4) of case in which this Section, the current market price per share of Common Stock on any day Section 4.6 shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 2 contracts
Sources: Indenture (CLS Holdings USA, Inc.), Indenture
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date dated fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the retained earnings of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4) of this Section), ) and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”, ," as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days Trading Days before, and ending not later than, the earlier of the day in question and the day before the “"ex” " date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the last reported last sale sales price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the Nasdaq National Market, or, if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or quoted on the Nasdaq National Market, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors Company for that purpose purpose. 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 Common Stock trades regular way on such exchange or in such market without the absence of any right to receive such quotations, as determined by the Board of Directors in good faithissuance or distribution.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish that any event treated for federal income tax to any holders of shares of Common Stock resulting from any purposes as a dividend or distribution of stock or issuance of stock rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall not be final and conclusive.
(8) The Company may make such decreases taxable to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposesrecipients.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 2 contracts
Sources: Indenture (At&t Wireless Services Inc), Indenture (Icos Corp / De)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock Capital Stock of the Company in shares of Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all or substantially all holders of its shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock (or securities convertible into or exchangeable for Common Stock) at a price per share (or having a conversion or exchange price per share) less than the current market price per share (determined as provided in paragraph (6) of this SectionSection 10.4) of the shares of Common Stock on the date fixed for the determination of stockholders shareholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering subscription price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion of exchange price of the convertible or exchangeable securities so offered) would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any In the event that all of the shares of Common Stock subject to such date fixed for such determination, any such rights, options rights or warrants are have not in fact issuedbeen issued when such rights or warrants expire, or are not exercised prior to the expiration thereof, then the conversion price shall promptly be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, readjusted to the conversion price that which would have been then be in effect if had the unexercised rights, options adjustment upon the issuance of such rights or warrants had never been granted made on the basis of the actual number of shares of Common Stock issued upon the exercise of such rights or such determination date had not been fixed, as the case may bewarrants. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stockshares, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stockshares, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its shares of Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding any (ia) any rights, options rights or warrants referred to in paragraph (2) of this SectionSection 10.4, (iib) any dividend or distribution paid exclusively in cash, not prohibited by Section 4.6 hereof and (iiic) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies10.4), 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 date day fixed for the determination of stockholders shareholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the shares of Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, Directors of the Company (whose determination shall be conclusive and described in a resolution of the Board Resolution of Directors of the Company filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable allocable to one share of Common Stock and the denominator shall be such current market price per share of the shares of Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification In case the shares of Common Stock shall be changed into securities other than Common Stock the same or a different number of shares of any class or classes of stock, whether by capital reorganization, reclassification, or otherwise (other than any reclassification upon a consolidation subdivision or merger to which Section 14.11 applies) shall be deemed to involve (a) combination of shares or a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of stock dividend described in paragraph (41) or (3) of this SectionSection 10.4, or a consolidation, merger or sale of assets described in Section 10.10), then and (b) a subdivision in each such event the Holders of Securities shall have the right thereafter to convert such Securities into the kind and amount of shares of stock and other securities and property receivable upon such reorganization, reclassification or combinationother change, as the case may be, by holders of the number of shares of Common Stock outstanding into which such Securities might have been converted immediately prior to such reorganization, reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section)change.
(6) For the purpose of any computation under paragraphs (2) and (4) of for this Section, the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing prices Closing Prices for the five 15 consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 30 and not less than 20 trading days before, and ending not later than, the earlier of the day in question and the day Business Days before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithquestion.
(7) No adjustment in the conversion price shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (7)) would require an increase or decrease of at least 1% in such price; provided, however, that any adjustments which by reason of this paragraph (7) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this paragraph (7) shall be made to the nearest cent.
(8) The Company may may, but shall not be required to, make such reductions in the conversion price, in addition to those required by paragraphs paragraph (1), (2), (3), (4) and (45) of this Section, Section 10.4 as it the Company's Board of Directors considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company Board of Directors shall have the power to resolve any ambiguity or correct any error in the adjustments made pursuant to this section Section 10.4 and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment The adjustments provided for in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article Section 10.4 shall be made to the nearest cent or to the nearest 1/10,000 of a share, as the case may besuccessively whenever any event listed above shall occur.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 2 contracts
Sources: Indenture (Sterling House Corp), Indenture (Rent Way Inc)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the earned surplus of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall all be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 15.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and the “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” ’ or “‘the day upon which such combination becomes effective”’, as the case may be, and “such ‘the day upon which such subdivision or combination becomes effective” ’ within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e .i.e., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “‘ex” ’ date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” ’ date’, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the Nasdaq Stock Market or, if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or quoted on the Nasdaq Stock Market, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithpurpose.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to in this section paragraph (7) and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment adjustments which by reason of this paragraph (9) 8) is 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 1/10,000 1/100 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 2 contracts
Sources: Indenture (Progress Software Corp /Ma), Indenture (Aqua America Inc)
Adjustment of Conversion Price. The Conversion Price shall be adjusted from time to time by the Issuer as follows:
(1a) In case the Company Issuer shall hereafter pay a dividend or make a dividend or other distribution on any class of capital stock to all holders of the Company outstanding Common Stock in shares of Common Stock, the conversion Conversion Price shall be reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the day date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction fraction, the numerator of which the numerator shall be the number of shares of the Common Stock outstanding at the close of business on the date fixed for such determination determination, and the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes purpose of this paragraph (1a), the number of shares of 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 Common StockIssuer. The Company Issuer will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the CompanyIssuer. If any dividend or distribution of the type described in this Section 4.05(a) is declared but not so paid or made, the Conversion Price shall again be adjusted to the Conversion Price that would then be in effect if such dividend or distribution had not been declared.
(2b) In case the Company Issuer shall issue rights, options rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within forty-five (45) days after the date fixed for determination of stockholders entitled to receive such rights or warrants) to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share Current Market Price (determined as provided in paragraph (6defined below) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the day following immediately prior to the date fixed for determination of stockholders entitled to receive such determination shall be reduced by multiplying such conversion price rights or warrants by a fraction fraction, the numerator of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of stockholders entitled to receive such determination rights or warrants plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price Current Market Price, and the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of stockholders entitled to receive such determination rights or warrants plus the total number of additional shares of Common Stock so offered for subscription or purchase. Such adjustment shall be successively made whenever any such rights or warrants are issued, such reduction to and shall become effective immediately after the opening of business on the day following the date fixed for determination of stockholders entitled to receive such determinationrights or warrants. If, after any such date fixed for such determination, any such rights, options or warrants To the extent that shares of Common Stock are not in fact issued, or are not exercised prior to delivered after the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options rights or warrants, the Conversion Price shall be readjusted to the conversion price Conversion Price that would have been then be in effect if had the unexercised rights, options adjustments made upon the issuance of such rights or warrants had never been granted or such determination date had not been fixed, as made on the case may be. For the purposes basis of this paragraph (2), delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the Conversion Price shall again be adjusted to be the Conversion Price that 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. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at any time outstanding shall not include shares held less than such Current Market Price, and in determining the treasury aggregate offering price of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of such shares of Common Stock. The Company will not issue , there shall be taken into account any rights, options consideration received by the Issuer for such rights or warrants in respect and any amount payable on exercise or conversion thereof, the value of shares such consideration, if other than cash, to be determined by the Board of Common Stock held in the treasury of the CompanyDirectors.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, and conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company Issuer shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock the Issuer (other than any rights, options dividends or warrants that by their terms will also be issued distributions to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Personwhich Section 4.05(a) hereof applies) or other property evidences of its indebtedness or assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2Section 4.05(b) of this Sectionhereof, (ii) and excluding any dividend or distribution (x) paid exclusively in cash, cash or (iiiy) any dividend or distribution referred to in paragraph Section 4.05(a) hereof (1) any of the foregoing hereinafter in this Section and 4.05(d) called the "Described Securities")), then, in each such case (iv) unless the Issuer elects to reserve such Securities for distribution to the Noteholders upon the conversion of the Notes so that any consideration distributed such holder converting Notes will receive upon such conversion, in any merger or consolidation addition to the shares of Common Stock to which Section 14.11 appliessuch holder is entitled, the conversion price amount and kind of such Described Securities which such holder would have received if such holder had converted its Notes into Common Stock immediately prior to the Record Date (as defined in Section 4.05(h)(iv) hereof for such distribution of the Described Securities)), the Conversion Price shall be adjusted reduced so that the same shall be equal to the price determined by multiplying the conversion price Conversion Price in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled Record Date with respect to receive 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 in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination Record Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive conclusive, and described in a resolution of the Board Resolution filed with of Directors) on the Trustee) Record Date of the portion of the assets, shares or evidences of indebtedness Described Securities so distributed applicable to one share of Common Stock and the denominator of which shall be such current market price the Current Market Price per share of the Common Stock, such adjustment reduction to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. IfRecord Date; provided, after any such date fixed for determinationhowever, any such distribution is not that in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property Described Securities so distributed applicable to one share of Common Stock is equal to or greater than the current market price per share Current Market Price of the Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Noteholder shall have the right to receive upon conversion the amount of Described Securities 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 that 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 4.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock. Rights or warrants distributed by the Issuer to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Issuer'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 be deemed not to have been distributed for purposes of this Section 4.05 (and no adjustment to the Conversion Price under this Section 4.05 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 4.05(d). If any such right or warrant, including any such existing rights or warrants 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 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 4.05 was made, (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Price shall be readjusted upon such final redemption repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights 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 such rights or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Price shall be readjusted as if such rights and warrants had not been issued. No adjustment of the Conversion Price shall be made pursuant to this Section 4.05(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed, or reserved by the Issuer for distribution to holders of Notes upon conversion by such holders of Notes to Common Stock. If the Issuer implements a stockholder rights plan, the Issuer agrees that such rights plan will provide that upon conversion of the Notes, the Holders holding Common Stock issued upon conversion shall receive the rights issued under such plan in lieu of the Issuer making an adjustment of the Conversion Price pursuant to this Section 4.05(d) unless there has already been an adjustment of the Conversion Price pursuant to this Section 4.05(d). For purposes of this Section 4.05(d) and Sections 4.05(a) and (b) hereof, any dividend or distribution to which this Section 4.05(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock (or both), shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets or shares of capital stock other than such shares of Common Stock or rights or warrants (and any Conversion Price reduction required by this Section 4.05(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Conversion Price reduction required by Sections 4.05(a) and (b) hereof with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution", "the date fixed for the determination of stockholders entitled to receive such rights or warrants" and "the date fixed for such determination" within the meaning of Sections 4.05(a) and (b) hereof, and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of Section 4.05(a) hereof.
(e) In case the Issuer shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding (x) any quarterly cash dividend on the Common Stock to the extent the aggregate cash dividend per share of Common Stock in any fiscal quarter does not exceed the greater of (A) the amount per share of Common Stock of the next preceding quarterly cash dividend on the Common Stock to the extent that such preceding quarterly dividend did not require any adjustment of the Conversion Price pursuant to this Section 4.05(e) (as adjusted to reflect subdivisions, or combinations of the Common Stock), and (B) 3.75% of the arithmetic average of the Closing Price (determined as set forth in Section 4.05(h) hereof) during the ten Trading Days (as defined in Section 4.05(h) hereof) immediately prior to the date of declaration of such dividend, and (y) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Issuer, whether voluntary or involuntary), then, in such case, 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 close of business on such record date by a fraction, the numerator of which shall be the Current Market Price of the Common Stock on the 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 of which shall be such Current Market Price of the Common Stock, such reduction to be effective immediately prior to the opening of business on the day following the record date; provided, however, that in the event the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security Noteholder shall have the right to receive upon conversion the amount of cash such evidences of indebtedness, shares of any class of capital stock or other property such Holder holder would have received had such Holder holder converted each Security Note on the record date. In the event that such datedividend 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. If any adjustment is required to be made as set forth in this Section 4.05(e) as a result of a distribution that is a quarterly dividend, such adjustment shall be based upon the amount by which such distribution exceeds the amount of the quarterly cash dividend permitted to be excluded pursuant hereto. If an adjustment is required to be made as set forth in this Section 4.05(e) above as a result of a distribution that is not a quarterly dividend, such adjustment shall be based upon the full amount of the distribution.
(5f) The reclassification In case a tender or exchange offer made by the Issuer or any Subsidiary for all or any portion of the Common Stock into securities other than Common Stock shall expire and such tender or exchange offer (other than any reclassification as amended upon a consolidation or merger to which Section 14.11 appliesthe expiration thereof) shall be deemed require the payment to involve (a) a distribution stockholders of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price consideration per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable having a fair market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.va
Appears in 2 contracts
Sources: Supplemental Indenture (Nvidia Corp/Ca), Supplemental Indenture (Nvidia Corp/Ca)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the earned surplus of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 15.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e .i.e., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “"ex” " date with respect to the issuance or distribution requiring such computation. For this purpose, the term “"`ex” ' date", when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the Nasdaq Stock Market or, if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or quoted on the Nasdaq Stock Market, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithpurpose.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to in this section paragraph (7) and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) 8) is 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 1/10,000 1/100 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 2 contracts
Sources: Indenture (Top Tankers Inc.), Indenture (Intermagnetics General Corp)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common StockShares, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock Shares outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock Shares 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 Common StockShares. The Company will not pay any dividend or make any distribution on shares of Common Stock Shares held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock Shares entitling them to subscribe for or purchase shares of Common Stock Shares at a price per share less than the current market price per share Common Share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders shareholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock Shares outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that Shares which the aggregate of the offering price of the total number of shares of Common Stock Shares so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock Shares outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock Shares so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock Shares 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 Common StockShares. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock Shares held in the treasury of the Company.
(3) In case outstanding shares of Common Stock Shares shall be subdivided into a greater number of shares of Common StockShares, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock Shares shall each be combined into a smaller number of shares of Common StockShares, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock Shares evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the earned surplus of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders shareholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share Common Share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock Share and the denominator shall all be such current market price per share of the Common StockShare, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock Shares into securities other than Common Stock Shares (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock Shares to all holders of Common Stock Shares (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders shareholders entitled to receive such distribution” " and “the "date fixed for such determination” " within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock Shares outstanding immediately prior to such reclassification into the number of shares of Common Stock Shares outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “such "the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock Share on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e .i.e., Business Days on which the Common Stock is Shares are traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “"ex” " date with respect to the issuance or distribution requiring such computation. For this purpose, the term “"'ex” ' date", when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades Shares trade regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Shares are not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then Shares are listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, on the Nasdaq Stock Market or, if the Common Shares are not listed or admitted to trading on any national securities exchange or quoted on the Nasdaq Stock Market, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithpurpose.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock Shares resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to in this section paragraph (7) and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment adjustments which by reason of this paragraph (9) 8) is 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 1/10,000 1/100 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 2 contracts
Sources: Indenture (Primus Guaranty LTD), Indenture (Primus Guaranty LTD)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies, 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e .( i.e., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Sectionsection, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section Section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19August 20, 1988, as amended1999, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 2 contracts
Sources: Indenture (Church & Dwight Co Inc /De/), Indenture (Church & Dwight Co Inc /De/)
Adjustment of Conversion Price. The Conversion Price shall be adjusted from time to time by the Company as follows:
(1a) In case the Company shall hereafter pay a dividend or make a dividend or other distribution on any class of capital stock to all holders of the Company outstanding Common Stock in shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this Section 15.5(a) is declared but not so paid or made, the Conversion Price shall again be adjusted to the Conversion Price which would then be in effect if such dividend or distribution had not been declared.
(2b) In case the Company shall issue rights, options rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 days after the date fixed for determination of stockholders entitled to receive such rights or warrants) to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share Current Market Price (determined as provided in paragraph (6defined below) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the day following immediately prior to the date fixed for determination of stockholders entitled to receive such determination shall be reduced by multiplying such conversion price rights or warrants by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of stockholders entitled to receive such determination rights and warrants plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price Current Market Price, and of which the denominator nominiator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of stockholders entitled to receive such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.rights and
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, and conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock of the Company (other than any dividends or rightsdistributions to which Section 15.5(a) applies) or evidences of its indebtedness or assets (including securities, options but excluding any rights or warrants referred to in Section 15.5(b), and excluding any dividend or distribution (x) in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, (y) paid exclusively in cash or (z) referred to in Section 15.5(a) (any of the foregoing hereinafter in this Section 15.5(d) called the "Securities")), then, in each such case (unless the Company elects to reserve such Securities for distribution to the Noteholders upon the conversion of the Notes so that any such holder converting Notes will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities which such holder would Each share of Common Stock issued upon conversion of Notes pursuant to this Article XV shall be entitled to receive the appropriate number of Rights, and the certificates representing the Common Stock issued upon such conversion shall bear such legends, in each case as provided by and subject to the terms of the Rights Plan as in effect at the time of such conversion (whether or not such Rights have separated from the Common Stock at the time of conversion). In the event that the Company implements any new stockholders' rights plan, as amended, supplemented or modified from time to time (a "New Rights Plan"), such New Rights Plan shall provide that upon conversion of the Notes the holders will receive, in addition to the Common Stock issuable upon such conversion, the rights (whether or not such rights have separated from Common Stock at the time of the conversion) issuable pursuant to the New Rights Plan. Rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company's capital stock (either initially or under certain circumstances), which -70- 71 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 be deemed not to have been distributed for purposes of this Section 15.5 (and no adjustment to the Conversion Price under this Section 15.5 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 15.5(d). 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 15.5 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 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 such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Price shall be readjusted as if such rights and warrants had not been issued. For purposes of this Section 15.5(d) and Sections 15.5(a) and (b), any dividend or distribution to which this Section 15.5(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of any class Common Stock (or both), shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets or shares of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without or rights or warrants (and any action Conversion Price reduction required by the Company this Section 15.5(d) with respect to such dividend or any other Persondistribution shall then be made) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Conversion Price reduction required by Sections 15.5(a) and (b) with respect to such dividend or distribution shall then be made), except (A) the Record
(e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding (x) any quarterly cash dividend on the Common Stock to the extent the aggregate cash dividend per share of Common Stock in any fiscal quarter does not exceed the greater of (A) the amount per share of Common Stock of the next preceding quarterly cash dividend on the Common Stock to the extent that such preceding quarterly dividend did not require any adjustment of the Conversion Price pursuant to this SectionSection 15.5(e) (as adjusted to reflect subdivisions or combinations of the Common Stock), and (iiB) 3.75% of the arithmetic average of the Closing Price (determined as set forth in Section 15.5(g)) during the ten Trading Days (as defined in Section 15.5(g)) immediately prior to the date of declaration of such dividend, and (y) any dividend or distribution paid exclusively in cashconnection with the liquidation, (iii) any dividend dissolution or distribution referred to winding up of the Company, whether voluntary or involuntary), then, in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliessuch case, the conversion price Conversion Price shall be adjusted reduced so that the same shall equal the price determined by multiplying the conversion price Conversion Price in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution Record Date by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) Current Market Price of the Common Stock on the date fixed for such determination 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 such Current Market Price of the Common Stock, such reduction to be effective immediately prior to the opening of business on the day following the Record Date; PROVIDED, HOWEVER, that in the event the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Noteholder 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 15.5(e) as a result of a distribution that is a quarterly dividend, such adjustment shall be based upon the amount by which such distribution exceeds the amount of the quarterly cash dividend permitted to be excluded pursuant hereto. If an adjustment is required to be made as set forth in this Section 15.5(e) above as a result of a distribution that is not a quarterly dividend, such adjustment shall be based upon the full amount of the distribution.
(f) 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 filed with the Trustee) resolution of the portion Board if Directors) that, as of the assetslast 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 Common Stock 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 Expiration Time by a fraction of which the numerator shall be the number of shares or evidences of indebtedness so distributed applicable to one share of Common Stock outstanding (including any tendered or exchanged shares) on the Expiration Time multiplied by the Current Market Price of the Common Stock 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 shareholders 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 current market price per share maximum, being referred to as the "Purchased Shares") and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) on the Expiration Time and the Current Market Price of the Common StockStock on the Trading Day next succeeding the Expiration Time, such adjustment reduction to become effective immediately prior to the opening of business on the day following the date fixed for Expiration Time. In the determination of stockholders entitled event that the Company is obligated to receive such distribution. If, after purchase shares pursuant to any such date fixed for determinationtender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such distribution is not in fact madepurchases or all such purchases are rescinded, the conversion price Conversion Price shall again be immediately readjusted effective as of adjusted to be the date that the Board of Directors determines not to make such distribution, to the conversion price that Conversion Price which would have been then be in effect if such determination date tender or exchange offer had not been fixed. In made.
(g) For purposes of this Section 15.5, the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security following terms shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.indicated:
Appears in 2 contracts
Adjustment of Conversion Price. (1a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include -75- shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2b) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6f) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2b), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2b) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the earned surplus of the Company and any dividend or distribution referred to in paragraph (1a) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall all be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders -76- entitled to receive such distribution. IfIf after the Distribution Date (the "Distribution Date"), after any as defined in the Rights Agreement, dated as of February 23, 1989, between the Company and The Chase Manhattan Bank, N.A., as in effect on the date hereof (the "Rights Agreement"), converting Holders of the Securities are not entitled to receive the Rights, as defined in the Rights Agreement, which would otherwise be attributable (but for the date of conversion) to the shares of Common Stock received upon such date fixed for determinationconversion, any such distribution is not in fact made, then adjustment of the conversion price shall be immediately readjusted effective made under the preceding sentence as if the Rights were then being distributed to holders of the date that Company s Common Stock. If such an adjustment is made and the Board of Directors determines not to make such distributionRights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment shall be made to the conversion price price, on an equitable basis, to take account of such event. However, it is hereby agreed that would have been in effect if such determination date had not been fixed. In the event Company may elect to amend the then fair market value (as so determined) of provisions presently applicable to the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made Rights so that each Holder share of a Security shall have the right to receive Common Stock issuable upon conversion of the amount Securities, whether or not issued after the Distribution Date for such Rights, will be accompanied by the Rights which would otherwise be attributable (but for the date of conversion) to such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such dateCommon Stock, in which event the preceding two sentences will not apply.
(5e) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (aA) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “the "date fixed for such determination” " within the meaning of paragraph (4d) of this Section), and (bB) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”, ," as the case may be, and “such "the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3c) of this Section).
(6f) For the purpose of any computation under paragraphs (2b) and (4d) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e .i.e., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “"ex” " date with respect to the issuance or distribution distribution, requiring such computation. For this purpose, the term “"'ex” ' date, ," when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the National Association of Securities Dealers Automated Quotations National Market System or, if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or quoted on such National Market System, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
purpose. -77- (7g) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1a), (2b), (3c) and (4d) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to in this section paragraph (g) and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 2 contracts
Sources: Indenture (Royal Gold Inc /De/), Indenture (Royal Gold Inc /De/)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company its Common Stock exclusively in Common Stock, the conversion price in effect at the opening of business on the day next following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day next following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall pay or make a dividend or other distribution on its Common Stock consisting exclusively of, or shall otherwise issue rights, options or warrants to all holders of its Common Stock Stock, rights, warrants or options entitling them the holders thereof to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (67) of this SectionSection 13.04) of the Common Stock on the date fixed for the determination of stockholders shareholders entitled to receive such rights, options warrants or warrants (other than pursuant to a dividend reinvestment plan)options, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will shall not issue any rights, warrants or options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In Subject to the last sentence of this paragraph (4), in case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock stock, securities, cash or rights, options or warrants to subscribe for or purchase shares of any class of capital stock property (other than excluding any rights, warrants or options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SectionSection 13.04, (ii) any dividend or distribution paid exclusively in cash, (iii) cash and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies13.04), the conversion price shall be adjusted reduced so that the same shall equal the price determined by multiplying the conversion price in effect immediately prior to the close effectiveness of business on the date fixed for the determination of stockholders entitled to receive such distribution conversion price reduction contemplated by this paragraph (4) by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (67) of this SectionSection 13.04) of the Common Stock on the date fixed for of such determination effectiveness less the then fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with and shall, in the Trustee) case of securities being distributed for which prior thereto there is an actual or when issued trading market, be no less than the value determined by reference to the average of the closing prices in such market over the period specified in the succeeding sentence), on the date of such effectiveness, of the portion of the assetsevidences of indebtedness, shares or evidences of indebtedness capital stock, securities, cash and property so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such reduction to become effective immediately prior to the opening of business on the day next following the later of (a) the date fixed for the payment of such distribution and (b) the date 20 days after the notice relating to such distribution is given pursuant to Section 13.06(a) (such later date of (a) and (b) being referred to as the "Reference Date"). If the Board of Directors determines the fair market value of any distribution for purposes of this paragraph (4) 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 pursuant to paragraph (7) of this Section. For purposes of this paragraph (4), any dividend or distribution that includes shares of Common Stock or rights, warrants or options to subscribe for or purchase shares of Common Stock shall be deemed instead to be (a) a dividend or distribution of the evidences of indebtedness, cash, property, shares of capital stock or securities other than such shares of Common Stock or such rights, warrants or options (making any conversion price reduction required by this paragraph (4)) immediately followed by (b) a dividend or distribution of such shares of Common Stock or such rights (making any further conversion price reduction required by paragraph (1) or (2) of this Section 13.04, except (i) the Reference Date of such dividend or distribution as defined in this paragraph (4) shall be substituted as "the date fixed for the determination of shareholders entitled to receive such dividend or other distributions", "the date fixed for the determination of shareholders entitled to receive such rights, warrants or options" and "the date fixed for such determination" within the meaning of paragraphs (1) and (2) of this Section 13.04 and (ii) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of paragraph (1) of this Section 13.04).
(5) In case the Company shall, by dividend or otherwise, make a distribution to all holders of its Common Stock exclusively in cash in an aggregate amount that, together with (i) the aggregate amount of any other distributions to all holders of its Common Stock made exclusively in cash within the 12 months preceding the date of payment of such distribution and in respect of which no conversion price adjustment pursuant to this paragraph (5) has been made and (ii) the aggregate of any cash plus the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of the tender or exchange offer referred to below, of consideration payable in respect of any tender or exchange offer by the Company or a Subsidiary for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no conversion price adjustment pursuant to paragraph (6) of this Section 13.04 has been made, exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (7) of this Section 13.04) of the Common Stock on the date fixed for shareholders entitled to receive such distribution times the number of shares of Common Stock outstanding on such date, 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 paragraph (5) by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (7) of this Section 13.04) of the Common Stock on the date of such effectiveness less the amount of cash so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such reduction to become effective immediately prior to the opening of business on the later of (a) the day following the date fixed for the payment of such distribution and (b) the date 20 days after the notice relating to such distribution is given pursuant to Section 13.06(a).
(6) In case a successful tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall involve an aggregate consideration 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 may be amended) that, together with (i) the aggregate of the cash plus the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of the other tender or exchange offer referred to below, of consideration payable in respect of any other tender or exchange offer by the Company or a Subsidiary for all or any portion of the Common Stock concluded within the preceding 12 months and in respect of which no conversion price adjustment pursuant to this paragraph (6) has been made and (ii) the aggregate amount of any distributions to all holders of the Common Stock made exclusively in cash within the preceding 12 months and in respect of which no conversion price adjustment pursuant to paragraph (5) of this Section 13.04 has been made, exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (7) of this Section 13.04) 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 (but not increased) 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 (i) the product of the current market price per share (determined as provided in paragraph (7) of this Section 13.04) of the Common Stock at the Expiration Time times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time minus (ii) the fair market value (determined as aforesaid) of the aggregate consideration payable to shareholders 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 (i) such current market price per share at the Expiration Time times (ii) such number of outstanding shares at 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 date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such dateExpiration Time.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(67) For the purpose of any computation under this paragraph and paragraphs (2), (4) and (45) of this SectionSection 13.04, the current market price per share of Common Stock on any day date in question shall be deemed to be the average of the daily closing prices Closing Prices for the five 5 consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days Trading Days before, and ending not later than, the earlier of date in question; PROVIDED, HOWEVER, that (i) if the day in question and the day before the “"ex” " date with respect to (as hereinafter defined) for any event (other than the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases requires an adjustment to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition price pursuant to those required by paragraphs paragraph (1), (2), (3), (4), (5) or (6) above ("Other Event") occurs on or after the 20th Trading Day prior to the date in question and prior to the "ex" date for the issuance or distribution requiring such computation (the "Current Event"), the Closing Price for each Trading Day prior to the "ex" date for such Other Event shall be adjusted by multiplying such Closing Price by the same 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 Other Event occurs after the "ex" date for the Current Event and on or prior to the date in question, the Closing Price for each Trading Day on and after the "ex" date for such Other Event shall be adjusted by multiplying such Closing 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, (iii) if the "ex" date for any Other Event occurs on the "ex" date for the Current Event, one of those events shall be deemed for purposes of clauses (i) and (4ii) of this section as it considers proviso to be advisable have an "ex" date occurring prior to the "ex" date for the other event, and (iv) if the "ex" date for the Current Event is on or prior to the date in order question, after taking into account any adjustment required pursuant to avoid clause (ii) of this proviso, the Closing Price for each Trading Day on or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as after such for income tax purposes.
(9) No adjustment in the conversion price "ex" date shall be required unless such adjustment would require an increase or decrease adjusted by adding thereto the amount of at least one percent any cash and the fair market value on the date in such conversion price; provided, however, that any adjustment which question (as determined in good faith by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made in a manner consistent with any determination that of such decrease would be in the best interests value for purposes of the Companyparagraph (4) or (5) of this Section 13.04, which whose determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare conclusive and described in a certificate signed by the Treasurer or other appropriate officer Board Resolution) of the Company stating portion of the decreased conversion price and the period during which it will be in effectrights, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office warrants, options, evidences of indebtedness, shares of capital stock, securities, cash or agency maintained for property being distributed applicable to one share of Common Stock. For the purpose of conversion any computation under paragraph (6) of securities pursuant to this Section 10.02 at least fifteen (15) days prior to 13.04, the date the decreased conversion current market price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders per share of Common Stock on any date in question shall be deemed to be the average of the daily Closing Prices for the 5 consecutive Trading Days selected by the Company commencing on or after the latest (the "Commencement Date") of (i) the date 20 Trading Days before the date in question, (ii) the date of commencement of the tender or exchange offer requiring such computation and (iii) the date of the last amendment, if any, of such tender or exchange offer involving a change in the maximum number of shares for which tenders are sought or a change in the consideration offered, and ending not later than the date of the Expiration Time of such tender or exchange offer (or, if such Expiration Time occurs before the close of trading on a Trading Day, not later than the Trading Day immediately preceding the date of such separation. If such an adjustment is made and such rights are later redeemedExpiration Time); PROVIDED, invalidated HOWEVER, that if the "ex" date for any Other Event (other than the tender or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.exc
Appears in 2 contracts
Sources: Indenture (Affymetrix Inc), Indenture (Affymetrix Inc)
Adjustment of Conversion Price. The conversion price per share of Common Stock as stated in paragraph 7 of the Securities (1the “Conversion Price”) In case shall be adjusted from time to time by the Company shall pay or make as follows:
(a) If the Company issues solely shares of Common Stock as a dividend or other distribution on any class of capital stock all or substantially all of the shares of Common Stock, or if the Company in subdivides or combines the outstanding shares of Common Stock, the conversion price applicable Conversion Price will be adjusted based on the following formula: where CP0 = the Conversion Price in effect at immediately prior to the opening open of business on the day following the date fixed Ex-Dividend Date for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying distribution, or immediately prior to the open of business on the effective date of such conversion price by a fraction subdivision or combination of which Common Stock, as the numerator shall be case may be; CP = the Conversion Price in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the open of business on the effective date of such subdivision or combination of Common Stock, as the case may be; OS0 = the number of shares of Common Stock outstanding at immediately prior to the close open of business on the date fixed Ex-Dividend Date for such determination and dividend or distribution, or immediately prior to the denominator shall be open of business on the sum effective date of such subdivision or combination of Common Stock, as the case may be; and OS = the number of shares and the total number of shares constituting Common Stock outstanding immediately after such dividend or other distribution, or immediately after the effective date of such reduction to subdivision or combination of Common Stock, as the case may be. Such adjustment shall become effective immediately after the opening of business on the day following the date fixed Ex-Dividend Date for such determinationdividend or distribution, or the effective date for such subdivision or combination of Common Stock. If, after any such date fixed for determination, If any dividend or distribution of the type described in this Section 6.06(a) is declared but not in fact paidso paid or made, or the outstanding shares of Common Stock are not split or combined, as the case may be, the conversion price Conversion Price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to or subdivide or combine the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which Conversion Price that would then be in effect if such dividend, distribution, subdivision or combination becomes effectiveof Common Stock had not been declared or announced.
(4b) In case If the Company shall, by dividend distributes to all or otherwise, distribute to substantially all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants entitling them for a period of not more than 60 calendar days from the record date for such distribution to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of the Common Stock without any action required by (or securities convertible into Common Stock), at a price per share (or a conversion price per share) less than the Company or any other Person) or other property (including cash or assets or securitiesaverage of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesincluding, the conversion price Trading Day immediately preceding the Ex-Dividend Date for such distribution, the Conversion Price shall be adjusted so that decreased based on the same shall equal following formula: where CP0 = the price determined by multiplying the conversion price Conversion Price in effect immediately prior to the close open of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed Ex-Dividend Date for such determination less distribution; CP = the then fair market value (as determined by Conversion Price in effect immediately after the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening open of business on the day following the date fixed Ex-Dividend Date for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of ; OS0 = the number of shares of the Common Stock that are outstanding immediately prior to such reclassification into the number open of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way business on the applicable exchange or in the applicable market without the right to receive Ex-Dividend Date for such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.;
Appears in 2 contracts
Sources: First Supplemental Indenture (DHT Holdings, Inc.), First Supplemental Indenture (DHT Holdings, Inc.)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies, 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e .i.e., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section Section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities Securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section Section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and and, if other than the Trustee, with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 2 contracts
Sources: Indenture (Church & Dwight Co Inc /De/), Indenture (Church & Dwight Co Inc /De/)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(1) In case If the Company shall pay pays or make makes a dividend or other distribution (a) on its Common Stock exclusively in Common Stock or (b) on any other class of capital stock Capital Stock of the Company in Company, which dividend or distribution includes Common StockStock of the Company, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution (the "Dividend Record Date") shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock of the Company outstanding at the close of business on the date fixed for such determination Dividend Record Date and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such . Such reduction to shall become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock of the Company at any time outstanding shall not include shares held in the treasury of the Company Company, but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants Subject to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of , if the Company pays or makes a dividend or other distribution on its Common Stock on the date fixed for the determination consisting exclusively of stockholders entitled to receive such rights, options or warrants Short Term Rights (other than pursuant to a dividend reinvestment planas defined below), or otherwise issues Short Term Rights to all holders of its Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the record date fixed for the determination of holders of Common Stock entitled to receive such determination Short Term Rights (the "Rights Record Date") shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock of the Company outstanding at the close of business on the date fixed for such determination Rights Record Date plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies, 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.91
Appears in 2 contracts
Sources: Indenture (Bay Apartment Communities Inc), Indenture (Trinet Corporate Realty Trust Inc)
Adjustment of Conversion Price. Subject to the requirements of the CSE (1or such other exchange on which the Debentures are then listed), the Conversion Price in effect at any date shall be subject to adjustment from time to time as set forth below.
(a) In case If and whenever at any time prior to the Company Time of Expiry the Corporation shall pay (i) subdivide, redivide or make change the outstanding Common Shares into a greater number of shares, (ii) reduce, combine or consolidate the outstanding Common Shares into a smaller number of shares, or (iii) issue Common Shares or securities convertible into Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other distribution 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 any class the date of capital stock this Indenture 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 Company Common Share Reorganization by multiplying the Conversion Price in effect immediately prior to such record date by a fraction: the denominator of which shall be the number of Common StockShares 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 conversion price number of Common Shares that would have been outstanding had such securities been exchanged for or converted into Common Shares on such record date, assuming in effect at the opening of business any case where such securities are not then convertible or exchangeable but subsequently become so, that they were convertible or exchangeable on the day following 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 fixed for determination before giving effect to such Common Share Reorganization. Such adjustment shall be made successively whenever any event referred to in this Section 4.5 shall occur. Any such issue of stockholders entitled to receive such Common Shares or securities convertible into Common Shares by way of a dividend or other distribution shall be reduced 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 (d) of this Section 4.5.
(b) If and whenever at any time prior to the Time of Expiry the Corporation shall fix 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, 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 conversion price record date by a fraction 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 number of shares Current Market Price per Common Share on such record date minus the amount in cash per Common Share distributed to holders of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after extent that any such date fixed for determination, any cash dividend or distribution is not in fact paid, the conversion price Conversion Price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, re- adjusted to the conversion price that Conversion Price which would have been then be in effect if such determination record date had not been fixed. For the purposes of this paragraph .
(1), the number of shares of Common Stock c) If and whenever at any time outstanding prior to the Time of Expiry the Corporation shall not include shares held in fix a record date for the treasury issuance of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Stock Shares entitling them them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase shares of Common Stock Shares (or securities convertible into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the current market price per share (determined as provided in paragraph (6) of this Section) 95% of the Current Market Price of a Common Stock Share on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan)record date, the conversion 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 at the opening of business on the day following the such record date fixed for such determination shall be reduced by multiplying such conversion price by a fraction fraction, of which the numerator shall be the total number of shares Common Shares outstanding on such record date plus a number of Common Stock outstanding at the close of business on the date fixed for such determination plus Shares equal to the number of shares of Common Stock that arrived at by dividing the aggregate of the offering price of the total number of shares of additional Common Stock so Shares offered for subscription or purchase would purchase at (or the aggregate conversion or exchange price of the convertible securities so offered) by such current market price Current Market Price per Common Share, and of which the denominator shall be the total number of shares of Common Stock Shares outstanding at the close of business on the such record date fixed for such determination plus the total number of shares of additional Common Stock so Shares offered for subscription or purchase, purchase (or into which the convertible securities so offered are convertible). Such adjustment shall be made successively whenever such reduction to become effective immediately after a record date is fixed. To the opening of business on the day following the date fixed for such determination. If, after extent that any such date fixed for such determinationoptions, any such rights, options rights or warrants are not in fact issuedso issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the conversion price Conversion Price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, re-adjusted to the conversion price that Conversion Price which would have been then be in effect if the unexercised rights, options or warrants had never been granted or such determination record date had not been fixedfixed 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. For .
(d) If and whenever at any time prior to the purposes Time of this paragraph 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 exchange, merger of the Corporation with or into any other Person or other entity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other Person (2)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 effective 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 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 Common Stock. The Company will not issue any rightsShares receive pursuant to such liquidation, options dissolution or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increasewinding-up, as the case may be, that such holder of a Debenture would have been entitled to become effective immediately after the opening of business 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 day following record date or the day date of this Indenture thereof, 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 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 14.4. Any indenture entered into between the Corporation, any successor to the Corporation or such subdivision purchasing Person or combination becomes effectiveother 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. For greater certainty, nothing in this Section 4.5(d) shall affect or reduce the requirement for any Person to make a Change of Control Purchase Offer, and notice of any transaction to which this Section 4.5(d) applies shall be given in accordance with Section 4.10.
(4e) In case If the Company shall, by dividend or otherwise, distribute Corporation shall make a distribution to all holders of its Common Stock Shares of shares in the capital of the Corporation, other than Common Shares, or evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) indebtedness or other property assets of the Corporation, including securities (including cash or assets or securities, but excluding excluding
(i) any rights, options issuance of rights or warrants referred for which an adjustment was made pursuant to in paragraph (2) of this SectionSection 4.5(c), and (ii) any dividend or distribution paid exclusively in cashcash for which an adjustment was made pursuant to Section 4.5(b) (the "Distributed Securities"), then in each such case (iii) any unless the Corporation distributes such Distributed Securities to the holders of Debentures on such dividend or distribution referred date (as if each holder had converted such Debenture into Common Shares immediately preceding the record date with respect to such distribution)) the Conversion Price in paragraph (1) of this Section and (iv) any consideration distributed in any merger effect immediately preceding the distribution date fixed for the dividend or consolidation to which Section 14.11 applies, the conversion price distribution shall be adjusted so that the same shall equal the price determined by multiplying the conversion price Conversion Price in effect immediately preceding such 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 close ex- distribution date and of which the numerator shall be the VWAP for the Common Shares for the first five consecutive trading days that occur immediately following ex distribution date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective five Business Days immediately following the distribution 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 that would then be in effect if such dividend or distribution had not been declared. Notwithstanding the foregoing, if the securities distributed by the Corporation to all holders of its Common Shares consist of capital stock of, or similar equity interests in, a Subsidiary or other business of the Corporation (the "Spinoff Securities"), the Conversion Price shall be adjusted, unless the Corporation makes an equivalent distribution to the holders of Debentures, so that the same shall be equal to the rate determined by multiplying the Conversion Price in effect on the record date fixed for the determination of stockholders shareholders entitled to receive such distribution by a fraction fraction, the denominator of which the numerator shall be the current 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 dividend trading commences for such distribution on the CSE, or such other national or regional 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 is calculated for the Common Shares) over the Spinoff Valuation Period of the Spinoff Securities or, if no such prices are available, the fair market value of the Spinoff Securities as reasonably determined by the Board of Directors (which determination shall be conclusive and shall be evidenced by an Officers’ 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 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 with respect to such distribution.
(f) If any issuer bid made by the Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per share Common Share having a fair market value (determined as provided in paragraph (6below) of this Section) of that exceeds the Current Market Price per Common Stock Share on the last date fixed for (the "Expiration Date") tenders could have been made pursuant to such determination less issuer bid (as it may be amended) (the then last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the "Expiration Time"), the Conversion Price shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Price in effect immediately preceding the close of business on the Expiration Date by a fraction of which: (i) the denominator shall be the sum of (A) the fair market value of the aggregate consideration (the fair market value as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a Board Resolution filed with which shall be evidenced by an Officers’ Certificate delivered to the Trustee) payable to shareholders based on the acceptance (up to any maximum specified in the terms of the portion issuer bid) of all Common Shares validly tendered and not withdrawn as of the assetsExpiration Time (the Common Shares deemed so accepted, shares or evidences up to any such maximum, being referred to as the "Purchased Common Shares") and (B) the product of indebtedness so distributed applicable to one share the number of Common Stock Shares outstanding (less any Purchased Common Shares and excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time and the denominator Current Market Price per Common Share on the Expiration Date and (ii) the numerator of which shall be such current market price per share the product of the number of Common StockShares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price per Common Share on the Expiration Date, such adjustment increase to become effective immediately prior to preceding the opening of business on the day following the date fixed for Expiration Date. In the determination of stockholders entitled event that the Corporation is obligated to receive such distribution. If, after purchase Common Shares pursuant to any such date fixed for determinationissuer bid, but the Corporation is permanently prevented by applicable law from effecting any or all such distribution is not in fact madepurchases or any or all such purchases are rescinded, the conversion price Conversion Price shall again be immediately readjusted effective as of adjusted to be the date that the Board of Directors determines not to make such distribution, to the conversion price that Conversion Price which would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive based upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.t
Appears in 2 contracts
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the earned surplus of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall all be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 13.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the Nasdaq Stock Market or, if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or quoted on the Nasdaq Stock Market, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithpurpose.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) 8) is 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 1/10,000 1/100 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 2 contracts
Sources: Indenture (Jefferies Group Inc /De/), Indenture (Jefferies Group Inc /De/)
Adjustment of Conversion Price. The Conversion Price shall be adjusted from time to time by the Company as follows:
(1a) In case If the Company shall hereafter pay a dividend or make a dividend or other distribution on any class of capital stock to all holders of the Company outstanding shares of Class A Common Stock in shares of Class A Common Stock, the conversion price Conversion Price in effect at the opening of business on the day date following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Class A Common Stock outstanding at the close of business on the date Record Date (as defined in Section 12.5(g)) fixed for such determination and the denominator shall be the sum of such number of shares of Class A Common Stock and the total number of shares of Class A Common Stock constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determinationRecord Date. If, after any such date fixed for determination, If any dividend or distribution of the type described in this Section 12.5(a) is declared but not in fact paidso paid or made, the conversion price Conversion Price shall again be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, adjusted to the conversion price that Conversion Price which would have been then be in effect if such determination date dividend or distribution had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Companydeclared.
(2b) In case If the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Class A Common Stock shall be subdivided into a greater number of shares of Class A Common Stock or the Company issues any shares of Capital Stock in connection with a reclassification of the Class A Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective or issuance occurs shall be proportionately reduced, and, conversely, in case if the outstanding shares of Class A Common Stock shall each be combined into a smaller number of shares of Class A Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effectiveeffective or issuance occurs.
(4c) If the Company shall issue rights or warrants to all or substantially all holders of its outstanding shares of Class A Common Stock entitling such holders to subscribe for or purchase shares of Class A Common Stock at a price per share less than the Current Market Price (as defined in Section 12.5(g) of Class A Common Stock on the Record Date fixed for the determination of shareholders entitled to receive such rights or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the date after such Record Date by a fraction of which the numerator shall be the number of shares of Class A Common Stock outstanding at the close of business on the 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 would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Class A Common Stock outstanding on the close of business on the Record Date plus the total number of additional shares of Class A Common Stock so offered for subscription or purchase. Such adjustment shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of shareholders entitled to receive such rights or warrants. To the extent that shares of Class A Common Stock are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants, the Conversion Price shall be readjusted to be the Conversion Price which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Class A Common Stock actually delivered. If such rights or warrants are not so issued, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such date fixed for the determination of shareholders entitled to receive such rights or warrants had not been fixed. In case determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Class A Common Stock at less than such 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 for such rights or warrants, with the value of such consideration, if other than cash, to be determined by the Board of Directors.
(d) If the Company shall, by dividend or otherwise, distribute to all holders of its Class A Common Stock shares of any class of Capital Stock of the Company (other than any dividends or distributions to which Section 12.5(a) applies) or evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) cash or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants of a type referred to in paragraph (2Section 12.5(c) of this Section, and (ii) any dividend or distribution dividends and distributions paid exclusively in cash, ) (iii) any dividend or distribution referred to the foregoing hereinafter in paragraph (1) of this Section and (iv12.5(d) any consideration distributed called the "Securities"), then, in any merger or consolidation to which Section 14.11 applieseach such case, the conversion price Conversion Price shall be adjusted reduced so that the same shall be equal to the price determined by multiplying the conversion price Conversion Price in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled Record Date with respect to receive such distribution by a fraction of which the numerator shall be the current market price per share Current Market Price (determined as provided in paragraph (6) of this Sectionsection 12.5(g)) of the Class A Common Stock on the such date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board Resolution filed with the Trusteeof Directors) on such date of the portion of the assets, shares or evidences of indebtedness Securities so distributed applicable to one share of Class A Common Stock and the denominator shall be such current market price per share equal to the sum of the Current Market Price of the Class A Common Stock, such adjustment reduction to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. IfRecord Date; provided, after any such date fixed for determinationhowever, any such distribution is not that in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then minus the fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property Securities so distributed applicable to one share of Class A Common Stock is equal to or greater than the current market price per share Current Market Price of the Class A Common Stock on such datethe Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder holder of a Security Notes shall have the right to receive upon conversion of a Note (or any portion thereof) the amount of Securities such evidences of indebtedness, shares of any class of capital stock or other property such Holder holder would have received had such Holder holder converted each Security on such date.
Note (5or portion thereof) The reclassification immediately prior to such Record Date. If 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 12.5(d) by reference to the actual or when issued trading market for any securities comprising all or part of such distribution, 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 Stock into securities other than pursuant to Section 12.5(g) to the extent possible. 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 Company's Capital Stock (other than any reclassification upon either initially or under certain circumstances), which rights or warrants, until the occurrence of a consolidation specified event or merger events ("Trigger Event"): (i) are deemed to which 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 shares of Class A Common Stock, shall be deemed not to have been distributed for purposes of this Section 14.11 applies12.5(d) (and no adjustment to the Conversion Price under this Section 12.5(d) shall be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to involve (ahave been distributed and an appropriate adjustment to the Conversion Price under this Section 12.5(d) a distribution of shall be made. If any such securities other than Common Stock rights or warrants, including any such existing rights or warrants distributed prior to all holders of Common Stock (and the effective date of this Indenture, are subject to subsequent events, upon the occurrence of each of which such reclassification rights or warrants shall become exercisable to purchase different securities, evidences of indebtedness or other assets, then the occurrence of each such event shall be deemed to be “such date of issuance and record date with respect to new rights or warrants (and a termination or expiration of the existing rights or warrants without exercise by the holder thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event with respect thereto, that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Price under this Section 12.5 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 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 as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Price shall be readjusted as if such rights and warrants had not been issued. For purposes of Sections 12.5(a) and (c) and this Section 12.5(d), any dividend or distribution to which this Section 12.5(d) is applicable that also includes shares of Class A Common Stock, or rights or warrants to subscribe for or purchase shares of Class A Common Stock to which Section 12.5(c) applies (or both), shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants other than such shares of Class A Common Stock or rights or warrants to which Section 12.5(c) applies (and any Conversion Price reduction required by this Section 12.5(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Class A Common Stock or such rights or warrants (and any further Conversion Price reduction required by Sections 12.5(a) and (c) with respect to such dividend or distribution shall then be made, except that (A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution” ", "Record Date fixed for such determination" and “"Record Date" within the meaning of Section 12.5(a) and as "the date fixed for the determination of shareholders entitled to receive such rights or warrants", "the Record Date fixed for the determination of the shareholders entitled to receive such rights or warrants" and "such Record Date" within the meaning of Section 12.5(c) and (B) any shares of Class A Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination” " within the meaning of paragraph (4) of this SectionSection 12.5(a), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6e) For If the purpose Company shall, by dividend or otherwise, distribute cash to all holders of its Class A Common Stock and/or Class B Common Stock (excluding any cash that is distributed upon a merger or consolidation to which Section 12.6 applies or as part of a distribution referred to in Section 12.5(d)) in an aggregate amount that, combined together with (1) the aggregate amount of any computation under paragraphs other such all-cash distributions to all holders of its Common Stock within the 12 months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to this Section 12.5(e) has been made, and (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence aggregate of any such quotations, cash plus the fair market value (as determined by the Board of Directors Directors, whose determination shall be conclusive and described in good faith.
a resolution of the Board of Directors) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Class A Common Stock and/or Class B Common Stock concluded within the 12 months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to Section 12.5(f) has been made, exceeds 10% of the sum of (7i) The Company may make the product of (x) the Current Market Price (determined as provided in Section 12.5(g)) of the Class A Common Stock on the Record Date with respect to such reductions distribution times (y) the number of shares of Class A Common Stock outstanding on such date plus (ii) the product of (x) the Current Market Price (determined as provided in Section 12.5(g)) of the conversion priceClass B Common Stock on the Record Date with respect to such distribution times (y) the number of shares of Class B Common Stock outstanding on such date, then, and in addition each such case, immediately after the close of business on such date, the Conversion Price shall be reduced so that it shall equal the price determined by multiplying the Conversion Price in effect immediately prior to those required the close of business on such Record Date by paragraphs a fraction (1i) the numerator of which shall be equal to the Current Market Price (determined as provided in Section 12.5(g)) of the Class A Common Stock on the Record Date less an amount equal to the quotient of (x) the excess of such combined amount over such 10% allocable to the shares of Class A Common Stock (as determined by the Board of Directors, (2), (3whose determination shall be conclusive and set forth in a resolution of the Board of Directors) and (4y) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders the number of shares of Class A Common Stock resulting from any dividend or distribution outstanding on the Record Date and (ii) the denominator of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing which shall be final and conclusive.
(8) The Company may make such decreases equal to the conversion price, for the remaining term Current Market Price of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Class A Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as on such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion priceRecord Date; provided, however, that any adjustment which by reason if the portion of this paragraph (9) the cash so distributed applicable to one share of Class A Common Stock is not required equal to be made shall be carried forward and taken into account or greater than the Current Market Price of the Class A Common Stock on the Record Date, in any subsequent lieu of the foregoing adjustment. All calculations under this Article , adequate provision shall be made so that each holder of Notes shall have the right to the nearest cent or to the nearest 1/10,000 receive upon conversion of a shareNote (or any portion thereof) the amount of cash such holder would have received had such holder converted such Note (or portion thereof) immediately prior to such Record Date. If such dividend or distribution is not so paid or made, as the case may beConversion 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.
(10f) To the extent permitted If a tender offer made by applicable law, the Company from time or any of its subsidiaries for all or any portion of the Class A Common Stock and/or Class B Common Stock expires and such tender offer (as amended upon the expiration thereof) requires the payment to time may decrease shareholders (based on the conversion price acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the CompanyDirectors, which whose determination shall be conclusive. Whenever conclusive and described in a resolution of the conversion price is decreased pursuant to Board of Directors) that, combined together with (1) the preceding sentenceaggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors), as of the expiration of such tender offer, of consideration payable in respect of any other tender offers, by the Company shall prepare a certificate signed by the Treasurer or other appropriate officer any of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office its subsidiaries for all or agency maintained for the purpose any portion of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to expiring within the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.12 months prece
Appears in 2 contracts
Sources: Indenture (Agere Systems Inc), Indenture (Agere Systems Inc)
Adjustment of Conversion Price. (1) In With respect to any series of Securities that is convertible into shares of the Company's common stock, in case the Company shall pay or make a dividend or other distribution on any class of capital stock Capital Stock of the Company in Common Stockshares of common stock, the conversion price for any series of Securities in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock common stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In With respect to any series of Securities that is convertible into shares of the Company's common stock, in case the Company shall issue rights, options rights or warrants to all or substantially all holders of its Common Stock shares of common stock entitling them to subscribe for or purchase shares of Common Stock common stock at a price per share (or having a conversion price per share) less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock shares of common stock on the date fixed for the determination of stockholders shareholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price for any series of Securities in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock common stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that common stock which the aggregate of the offering subscription price of the total number of shares of Common Stock common stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock common stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock common stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any In the event that all of the shares of common stock subject to such date fixed for such determination, any such rights, options rights or warrants are have not in fact issuedbeen issued when such rights or warrants expire, or are not exercised prior to the expiration thereof, then the conversion price shall promptly be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, readjusted to the conversion price that which would have been then be in effect if had the unexercised rights, options adjustment upon the issuance of such rights or warrants had never been granted made on the basis of the actual number of shares of common stock issued upon the exercise of such rights or such determination date had not been fixed, as the case may bewarrants. For the purposes of this paragraph (2), the number of shares of Common Stock 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 Common Stockcommon stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock common stock held in the treasury of the Company.
(3) In With respect to any series of Securities that is convertible into shares of the Company's common stock, in case the outstanding shares of Common Stock common stock shall be subdivided into a greater number of shares of Common Stockshares, the conversion price for any series of Securities in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock common stock shall each be combined into a smaller number of shares of Common Stockshares, the conversion price for any series of Securities in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In With respect to any series of Securities that is convertible into shares of the Company's common stock, in case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock shares of common stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, not prohibited by Section 4.06 hereof and (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), the conversion price for any series of Securities 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 date day fixed for the determination of stockholders shareholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock shares of common stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, Directors of the Company (whose determination shall be conclusive and described in a resolution of the Board Resolution of Directors of the Company filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable allocable to one share of Common Stock common stock and the denominator shall be such current market price per share of the Common Stockshares of common stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification With respect to any series of Common Stock Securities that is convertible into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shares of the Company's common stock, in case the shares of common stock shall be deemed to involve (a) changed into the same or a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the different number of shares of Common Stock outstanding immediately prior to such reclassification into the number any class or classes of shares of Common Stock outstanding immediately thereafter stock, whether by capital reorganization, reclassification, or otherwise (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such other than a subdivision or combination becomes effective” within the meaning of shares or a stock dividend described in paragraph (1) or paragraph (3) of this Section, or a consolidation, merger or sale of assets described in Section 10.10), then and in each such event the Holders of Securities of any series shall have the right thereafter to convert such Securities into the kind and amount of shares of stock and other securities and property receivable upon such reorganization, reclassification or other change, by holders of the number of shares of common stock into which such Securities might have been converted immediately prior to such reorganization, reclassification or change.
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock common stock on any day date shall be deemed to be the average of the daily closing prices Closing Prices for the five 15 consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 30 and not less than 20 trading days before, and ending not later than, the earlier of the day in question and the day Business Days before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithquestion.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price for the Securities of any series shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (7)) would require an increase or decrease of at least one percent 1% in such conversion price; provided, however, that any adjustment adjustments which by reason of this paragraph (97) is are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article paragraph (7) shall be made to the nearest cent or to the nearest 1/10,000 of a share, as the case may becent.
(10) To the extent permitted by applicable law8) The Company may, the Company from time to time may decrease but shall not be required to, make such reductions in the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stockany series, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stockthose required by paragraph (1), such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.(2),
Appears in 2 contracts
Sources: Indenture (Assisted Living Concepts Inc), Indenture (Assisted Living Concepts Inc)
Adjustment of Conversion Price. The conversion price shall be subject to adjustment from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in its Common StockShares, the conversion price in effect at the opening of business on or, the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which (x) the numerator shall be the number of shares of Common Stock Shares outstanding at the close of business on the date fixed for such determination and (y) the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock Shares 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 Common StockShares. The Company will not pay any dividend or make any distribution on shares of Common Stock Shares held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants (which rights or warrants expire within 45 days and are not available on an equivalent basis to Holders of the Securities convertible pursuant to this Article Fourteen upon conversion) to all holders of its Common Stock Shares entitling them to subscribe for or purchase shares of Common Stock Shares at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock Shares on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock Shares outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that Shares which the aggregate of the offering price of the total number of shares of Common Stock Shares so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock Shares outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock Shares so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If; provided, after any such date fixed for such determinationhowever, any such rights, options or warrants that to the extent that Common Shares are not in fact issued, or are not exercised prior to delivered after the expiration thereofof such rights or warrants, the conversion price shall be immediately readjusted, effective as of the date readjusted (but only with respect to Securities converted after such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, expiration) to the conversion price that would have been then be in effect if had the unexercised rights, options adjustments made upon the issuance of such rights or warrants had never been granted made upon the basis of delivery of only the number of Common Shares actually issued. In determining whether any rights or warrants entitle the holders of Common Shares to subscribe for or purchase Common Shares at less than fair market value, there shall be taken into account any consideration received by the Company upon issuance and upon exercise of such rights or warrants, the value of such consideration, if other than cash, to be determined by the Board of Directors (whose determination date had not been fixed, as the case may beshall be conclusive and described in a Board Resolution). For the purposes of this paragraph (2), the number of shares of Common Stock at Shares 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 Common StockShares. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock Shares held in the treasury of the Company.
(3) In case outstanding shares of Common Stock Shares shall be subdivided into a greater number of shares of Common StockShares, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock Shares shall each be combined into a smaller number of shares of Common StockShares, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, at any time distribute Excess Cash to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesShares, the conversion price shall be adjusted reduced so that the same owner shall equal the price determined by multiplying the conversion price in effect immediately prior to the close effectiveness of business on the date fixed for the determination of stockholders entitled to receive such distribution conversion price reduction contemplated by this paragraph (4) by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock Shares on the such date fixed for such determination less the then fair market value (as determined by the Board amount of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness Excess Cash so distributed applicable to one share of Common Stock Share and the denominator shall be such current market price per share of the Common StockShares, such adjustment reduction to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distributioncash dividend. If"Excess Cash" shall mean any dividend or distribution (excluding, after any such date fixed for determinationin all events, any such dividend or distribution is not described in fact made, the conversion price shall be immediately readjusted effective as paragraph (5) of the date that the Board this Section) consisting exclusively of Directors determines not cash and declared with respect to make such distribution, Common Shares to the conversion price that would have been in effect if extent such determination date had not been fixed. In dividend or distribution when added to all other dividends or distributions on Common Shares consisting exclusively of cash and made during the event the then fair market value immediately preceding 12 months (as so determinedapplicable to one outstanding Common Share) exceeds 15% of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “Shares immediately preceding the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section)cash dividend.
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 2 contracts
Sources: Indenture (Alexanders Inc), Indenture (Alexanders Inc)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or sell to any Person shares of Common Stock or rights or warrants to all holders of its Common Stock entitling them such Person to subscribe for or purchase shares of Common Stock at a price per share less than the current market price Current Market Price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (or, in the case of rights or warrants not exercisable until the occurrence of a contingent event other than pursuant the passage of time or other event that is certain to a dividend reinvestment planoccur, on the date that such contingent event occurs), the conversion price in effect at the opening of business on the day following the date fixed for such determination or the date such contingent event occurs, as the case may be, shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination or the date such contingent event occurs, as the case may be, plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price Current Market Price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination or the date such contingent event occurs, as the case may be, plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options determination or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixedcontingent event occurs, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the retained earnings of the Company and any dividend or distribution referred to in inn paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price Current Market Price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive supported by a fairness opinion by a nationally recognized investment banking firm and described in a Board Resolution filed with the TrusteeAgent) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price Current Market Price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 8.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the "the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day date (the "Current Market Price") shall be deemed to be the average of the daily closing prices per share of the Company's Common Stock for the five 30 consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of immediately before the day in question and question; provided, however, that in the day before case of (i) a primary underwritten public offering at a price in excess of the “ex” date with respect then current conversion price, the Current Market Price shall be deemed the price to the issuance or distribution requiring such computation. For this purposeunderwriter set forth in the prospectus, and (ii) stock options issued to employees and directors pursuant to a plan adopted by the Company's Board of Directors, the term “ex” date, when used with respect to any issuance or distribution, Current Market Price shall mean be the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive exercise price of such issuance or distributionoptions. The closing price for each day shall be the last reported last sale price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, on such date as reported in composite transactions for the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, or stock market if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or stock market, the average of the closing bid and asked prices in the over-the-counter market as reported by NASDAQ or, if not quoted by NASDAQ on such day, as furnished by any New York Stock Exchange member firm registered broker/dealer selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithpurpose.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (31),(2),(3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish that any event treated for Federal income tax to any holders of shares of Common Stock resulting from any purposes as a dividend or distribution of stock or issuance of stock rights or warrants shall not be taxable to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusiverecipients.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent 1% in such the conversion price; provided, however, that any adjustment adjustments which by reason of this paragraph (9) is 8) 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 1/10,000 one-thousandth of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture (Autobond Acceptance Corp)
Adjustment of Conversion Price. (1a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common StockShares, the conversion price in effect at the opening of business on the day Trading Day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction fraction, the numerator of which the numerator shall be the number of shares of Common Stock Shares outstanding at the close of business the Trading Day on the date fixed for such determination and the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1a), the number of shares of Common Stock Shares at any time outstanding shall not include shares held in the treasury of the Company Company, but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of fractional Common StockShares. The Company will not pay any dividend or make any distribution on shares of Common Stock Shares held in the treasury of the Company.
(2b) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock Shares entitling them to subscribe for or purchase shares of Common Stock Shares at a price per share less than the current market price per share (determined as provided in paragraph (6f) of this Section) of the Common Stock Shares on the date dated fixed for the determination of stockholders shareholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price in effect at the opening of business on the day Trading Day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction fraction, the numerator of which the numerator shall be the number of shares of Common Stock Shares outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock Shares that the aggregate of the offering price of the total number of shares of Common Stock Shares so offered for subscription or purchase would purchase at such current market price and the denominator of which shall be the number of shares of Common Stock Shares outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock Shares so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day Trading Day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2b), the number of shares of Common Stock Shares at any time outstanding shall not include shares held in the treasury of the Company Company, but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of fractional Common StockShares. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock Shares held in the treasury of the Company.
(3c) In case outstanding shares of Common Stock Shares shall be subdivided into a greater number of shares of Common StockShares, the conversion price in effect at the opening of business on the day Trading Day following the day upon which such subdivision becomes effective shall be proportionately reduced, reduced and, conversely, in the case that outstanding shares of Common Stock Shares shall each be combined into a smaller number of shares of Common StockShares, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock Shares evidences of its indebtedness, shares of any class of capital stock Indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2b) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the retained earnings of the Company and any dividend or distribution referred to in paragraph (1a) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders shareholders entitled to receive such distribution by a fraction fraction, the numerator of which the numerator shall be the current market price per share (determined as provided in paragraph (6f) of this Section) of the Common Stock Shares on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness Indebtedness so distributed applicable to one share of Common Stock Share and the denominator of which shall be such current market price per share of the Common StockShare, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5e) The reclassification of Common Stock Shares into securities other than Common Stock Shares (other than any reclassification upon a consolidation or merger merger, to which Section 14.11 12.11 applies) shall be deemed to involve (ai) a distribution of such securities other than Common Stock Shares to all holders of Common Stock Shares (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders shareholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4d) of this Section), ) and (bii) a subdivision or combination, as the case may be, of the number of shares of Common Stock Shares outstanding immediately prior to such reclassification into the number of shares of Common Stock Shares outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”, ," as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3c) of this Section).
(6f) For the purpose of any computation under paragraphs (2b) and (4d) of this Section, the current market price per share of Common Stock Share on any day date shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days Trading Days before, and ending not later than, the earlier of the day in question and the day before the “"ex” " date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the last reported last sale sales price (regular way or, in case that no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Shares are not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then Shares are listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, on the Nasdaq National Market or, if the Common Shares are not listed or admitted to trading on any national securities exchange or quoted on the Nasdaq National Market, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors Company for that purpose purpose. 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 Common Shares trade regular way on such exchange or in such market without the absence of any right to receive such quotations, as determined by the Board of Directors in good faithissuance or distribution.
(7g) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1a), (2b), (3c) and (4d) of this Section, as it considers to be advisable in order to avoid or diminish that any event treated for federal income tax to any holders of shares of Common Stock resulting from any purposes as a dividend or distribution of stock or issuance of stock rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall not be final and conclusive.
(8) The Company may make such decreases taxable to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposesrecipients.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture (Robbins & Myers Inc)
Adjustment of Conversion Price. The conversion price at which a share of Series B Cumulative Convertible Preferred Stock is convertible into Common Stock shall be subject to adjustment from time to time as follows:
(1) In case the Company Corporation shall pay or make a dividend or other distribution on its Common Stock exclusively in Common Stock or shall pay or make a dividend or other distribution on any other class of capital stock of the Company Corporation which dividend or distribution includes Common Stock or shall exchange outstanding Rights (as defined in Section 8(j) hereof) for shares of Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution or to exchange such Rights shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distributiondistribution or exchange, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company Corporation shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for otherwise sell or purchase distribute shares of Common Stock at for a price consideration per share in cash or property less than the current market price per share most recent Closing Price prior to the time of such issuance (determined as provided in paragraph (6) and, if shares are issued, sold, or distributed pursuant to the exercise or conversion of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such options, warrants, convertible securities, or other rights, options the exercise or warrants conversion price thereof when such options, warrants, convertible securities, or rights were granted or issued was less than the Closing Price (defined below in Section 8(h) at the time of issuance of such options, warrants, convertible securities, or other than pursuant to a dividend reinvestment planrights), the conversion price then in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for immediately prior to such determination issuance, sale or distribution plus the number of shares of Common Stock that which the aggregate consideration received by the Corporation for such issuance, sale or distribution (such consideration, if other than cash, as determined by the Board of Directors, whose determination shall be conclusive and described in a vote of the offering price Board of the total number of shares of Common Stock so offered for subscription or purchase Directors) would purchase at such the current market price per share and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for giving effecting to such determination. Ifissuance, after any such date fixed for such determination, any such rights, options sale or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Companydistribution.
(3ii) In case the Corporation shall pay or make a dividend or other distribution on its Common Stock consisting exclusively of, or shall otherwise issue to all or substantially all holders of its Common Stock, rights or warrants entitling the holders thereof to subscribe for or purchase shares of
(iii) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, and conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(41) In case the Company Corporation shall, by dividend or otherwise, make a Section 8(c)(iv) Distribution (defined below in Section 8(h)) to
(2) Notwithstanding the foregoing, if the Corporation elects to reserve, for distribution to the holders of the Series B Cumulative Convertible Preferred Stock upon the conversion of the shares of Series B Cumulative Convertible Preferred Stock, the evidences of the Corporation's indebtedness, shares of any class of stock, or assets that would have been distributed to the holders of the Series B Cumulative Convertible Preferred Stock if they had converted their shares into shares of Common Stock so that any such holder converting shares of Series B Cumulative Convertible Preferred Stock will receive upon such conversion, in addition to the shares of the Common Stock to which such holder is entitled, the amount and kind of such evidences of the Corporation's indebtedness, shares of any class of stock, or assets which such holder would have received if such holder had, immediately prior to the Determination Date for such distribution of securities, converted its shares of Series B Cumulative Convertible Preferred Stock into Common Stock, the fair market value of the Securities shall, for purposes of this subparagraph (iv), be deemed to be zero.
(v) Subject to the last sentence of this subparagraph (v), in case the Corporation shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock evidences of its indebtedness, shares of cash (excluding any class cash representing an amount per share of capital stock of the Corporation to the extent such cash does not
(vi) In case a tender or rights, options exchange offer made by the Corporation or warrants to subscribe any subsidiary of the Corporation for all or purchase shares any portion of any class the Corporation's Common Stock shall expire and such tender or exchange offer shall involve the payment by the Corporation or such subsidiary of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares consideration per share of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies, 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 date fixed for the determination of stockholders entitled to receive such distribution by having a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) resolution of the portion Board of Directors) at the assets, shares last time (the "Expiration Time") tenders or evidences of indebtedness so distributed applicable exchanges may be made pursuant to one share of Common Stock and such tender or exchange offer (as it shall have been amended) that exceeds the denominator shall be such current market price per share (determined as provided in subparagraph (vii) of this Section 8(c)) of the Common Stock, such adjustment to become effective immediately prior to the opening of business Stock on the day following Trading Day next succeeding the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact madeExpiration Time, the conversion price shall be immediately readjusted effective as of the date reduced so that the Board of Directors determines not to make such distribution, to same shall equal the price determined by multiplying the conversion price that would have been in effect if such determination date had not been fixed. In immediately prior to the event Expiration Time by a fraction of which the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision numerator shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into (including any tendered or exchanged shares) on the number of shares of Common Stock outstanding immediately thereafter Expiration Time multiplied by the current market price per share (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, determined as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph provided in subparagraph (3vii) of this SectionSection 8(c).) of the Common Stock on the Trading Day next succeeding the Expiration Time and the denominator shall be the sum of (x) the fair market value (determined as
(6vii) For the purpose purposes of any computation under paragraphs (2) and (4) of this Sectionsection, the current market price per share of Common Stock on any day date shall be deemed to be the volume-weighted average trading price of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by for the Board of Directors commencing not more than 20 trading days before, and ending not later than, five-day period before the earlier of the day in question and the day before the “"ex” " date with respect to the any issuance or distribution requiring such computation. ; provided, however, that for purposes of clause (3) of this paragraph, the current market price per share shall be deemed to be the volume-weighted average trading price of the Common Stock for the five-day period after the "ex date." For purposes of this purposesubparagraph (vii), the term “"ex” " date, (1) when used with respect to any issuance or distribution, shall mean means the first date on which the Common Stock trades regular way on the applicable relevant exchange or in the applicable relevant market from which the Closing Price was obtained without the right to receive such issuance or distribution. The closing price for each day shall be , (2) when used with respect to any subdivision or combination of shares of Common Stock, means the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such first date as reported in composite transactions for the principal national securities on which the Common Stock is then listed trades regular way on such exchange or admitted in such market after the time at which such subdivision or combination becomes effective, and (3) when used with respect to trading orany tender or exchange offer, if means the first date on which the Common Stock is not listed or admitted to trading trades regular way on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose such exchange or in such market after the absence Expiration Time of any such quotations, as determined by the Board of Directors in good faithoffer.
(7viii) The Company Corporation may make such reductions in the conversion price, in addition to those required by paragraphs subparagraphs (1i), (2ii), (3iii), (iv), (v) and (4vi) of this SectionSection 8(c), as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock or rights to purchase Common Stock resulting from any dividend or distribution of stock (or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4acquire stock) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9ix) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent 1% in such the conversion price; provided, however, that any adjustment adjustments which by reason by
(x) Notwithstanding any other provision of this paragraph (9) is not required to Section 8 and without implication that the contrary would otherwise 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 true, no issuance, dividend or to the nearest 1/10,000 distribution requiring adjustment of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period pursuant to Section 8(c) hereof shall be deemed to have occurred in the event that, upon, following or in connection with the redemption or expiration of time the Rights or the termination of at least twenty (20) daysthe Rights Agreement or otherwise, the decrease being irrevocable during such period, provided Corporation enters into a new agreement that is comparable in purpose and effect to the Rights Agreement (as determined by the Board of Directors shall have made a determination that such decrease would be in the best interests of the CompanyDirectors, which whose determination shall be conclusive. ) and distributes rights to purchase Preferred Stock (or other similar stock purchase rights under such agreement that are attached to the Common Stock) to the holders of Common Stock.
(xi) Whenever the conversion price is decreased pursuant to adjusted as herein provided:
(1) the preceding sentence, Corporation shall compute the Company adjusted conversion price and shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating Corporation setting forth the decreased adjusted conversion price and showing in reasonable detail the period during acts upon which it will be in effectsuch adjustment is based, and such certificate shall forthwith be filed with the Trustee and with the Conversion Agent at such office or agency maintained transfer agent for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.Series B Cumulative Convertible Preferred Stock; and
(112) There shall be no adjustment to a notice stating the conversion price has been adjusted and setting forth the adjusted conversion price shall forthwith be required, and as soon as practicable after it is required, such notice shall be mailed by the Corporation to all record holders of shares of Series B Cumulative Convertible Preferred Stock at their last addresses as they shall appear upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders stock transfer books of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basisCorporation.
Appears in 1 contract
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company exclusively in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In Subject to the last sentence of paragraph (7) of this Section, in case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) 8) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes Purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rightsstock, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or (including securities, but excluding any (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any distribution or dividend paid upon a merger or consolidation to which Section 14.11 1211 applies), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) 8) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as - 133 - determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) ), of the portion of the assets, shares shares, cash or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that If the Board of Directors determines not the fair market value of any distribution for purposes of this paragraph (4) by reference to make 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 pursuant to the conversion price that would have been in effect paragraph (8) of this Section if such determination date had not been fixedprices are available in such market for such period. In the event the then fair market value For purposes of this paragraph (as so determined4), any dividend or distribution that includes shares of Common Stock, rights or warrants to subscribe for or purchase shares of Common Stock or other securities convertible into or exchangeable for shares of Common Stock shall be deemed instead to be (a) of the portion a dividend or distribution of the evidences of indebtedness, cash, assets or shares of any class of capital stock other than such shares of Common Stock, such rights or warrants or such other property so distributed is equal to convertible or greater than exchangeable securities (making any conversion price reduction required by this paragraph (4)) immediately followed by (b) in the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount case of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock or such rights or warrants, a dividend or distribution thereof (other than making any reclassification upon a consolidation further conversion price reduction required by paragraph (1) or merger to which Section 14.11 applies(2) of this Section, except (i) the Reference Date of such dividend or distribution as defined in this paragraph (4) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “substituted as "the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraphs (1) and (2) of this Section and (ii) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of paragraph (1) of this Section) or (c) in the case of such other convertible or exchangeable securities, a dividend or distribution of such number of shares of Common Stock as would then be issuable upon the conversion exchange thereof, whether or not the conversion or exchange of such securities is subject to any conditions (making any further conversion price reduction required paragraph (1) of this Section, except (i) the Reference Date of such dividend or distribution as defined in this paragraph (4) shall be substituted as "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" and (ii) the shares deemed to constitute such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination," each within the meaning of paragraph (1) of this Section). Notwithstanding the foregoing, in the event that the Company shall distribute rights or warrants (other than those referred to in paragraph (2) of this Section) ("Rights") pro rata to holders of Common Stock, the Company shall make proper provision so that each Holder of a Security who converts such Security (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 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 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 (bii) if such conversion occurs after the Distribution Date, the same number of Rights to which a subdivision or combination, as the case may be, holder of the number of shares of Common Stock outstanding into which the principal amount of the 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.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which Section 1211 applies or as part of a distribution referred to in paragraph (4) of this Section) in an aggregate amount that, combined together with (I) the aggregate amount of any other distributions to all holders of its Common Stock made exclusively in cash within the 12 months preceding the date of payment of such reclassification into distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the 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) of any other consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made, exceeds 12.5% of the product of the current market price per share of the Common Stock on the Calculation Date (as defined below) times the number of shares of Common Stock outstanding on such Calculation Date, then, and in each such case, immediately thereafter (and after the effective date close of business on such reclassification Calculation Date, the conversion price shall be deemed 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 Calculation Date by a fraction (i) the numerator of which shall be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the Calculation Date less an amount equal to the quotient of (x) the excess of such combined amount over such 12.5% and (y) the number of shares of Common Stock outstanding on any day such Calculation Date and (ii) the denominator of which shall be deemed equal to be the average current market price per share (determined as provided in paragraph (8) of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which this Section) of the Common Stock is traded) selected by on such Calculation Date. As used in this paragraph (5), "Calculation Date" means, in the Board case of Directors commencing not more than 20 trading days before, and ending not later thana dividend, the earlier date of declaration of such dividend and, in the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purposecase of any other type of distribution, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average determination of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basisdistribution.
Appears in 1 contract
Sources: Indenture (Dimon Inc)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) 8) of this Section) of the Common Stock on the date dated fixed for the determination of stockholders shareholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options rights or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options rights or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders shareholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) 8) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted readjusted, effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. .
(5) In case the event Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section) in an aggregate amount that, combined together with (I) the then aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate of any cash plus the fair market value (as so determineddetermined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution and filed with the Trustee) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, 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 date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph(8) of this Section) of the Common Stock on such date for determination.
(6) In case a tender offer made by the Company or any subsidiary of the Company for all or any portion of the evidences Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of indebtednessthe tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors, shares whose determination shall be conclusive and described in a Board Resolution and filed with the Trustee) that combined together with (I) the 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 and filed with the Trustee), as of the expiration of such tender offer, of consideration payable in respect of any class other tender offer by the Company or any subsidiary of capital stock the Company for all or other property so distributed is equal any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to or greater than this paragraph (6) has been made and (II) the aggregate amount of any cash distributions to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock on such date, (determined as provided in lieu paragraph (8) of this Section) as of the foregoing adjustmentlast time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time, adequate provision then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the conversion price shall be made adjusted so that each Holder the same shall equal the price determined by multiplying the conversion price immediately prior to close of business on the date of the Expiration Time by a Security fraction (i) the numerator of which shall have be equal to (A) the right to receive upon conversion product of (I) the amount current market price per share of such evidences the Common Stock (determined as provided in paragraph (8) of indebtedness, this Section) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any class tendered shares) on the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of capital stock or other property which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such Holder would have received had such Holder converted each Security on such datemaximum, being referred to as the "Purchased Shares").
(57) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders shareholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4) of this Section), ) and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”, ," as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) 8) For the purpose of any computation under paragraphs (2), (4), (5) and (46) of this Section, the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days Trading Days before, and ending not later than, the earlier of the day in question and the day before the “"ex” " date (as described below) with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the last reported last sale sales price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the Nasdaq National Market, or, if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or quoted on the Nasdaq National Market, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors Company for that purpose purpose. 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 Common Stock trades regular way on such exchange or in such market without the absence of any right to receive such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid issuance or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposesdistribution.
(9) No adjustment in the conversion price shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment adjustments which by reason of this paragraph (9) is 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 1/10,000 one-hundredth of a share, as the case may be.
(10) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, 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 shall not be taxable to the recipients. To the extent permitted by applicable law, the Company from time to time may decrease reduce the conversion price by any amount for any period of time of if the period is at least twenty (20) days, the decrease being irrevocable during such period, provided days and the Board of Directors shall have made a determination that such decrease reduction would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased reduced pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer give notice of the Company stating reduction to the decreased Holders of Securities in the manner provided in Section 1.6 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 during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture (Safeco Corp)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on its Common Stock exclusively in stock or shall pay or make a dividend or other distribution on any other class of capital stock Capital Stock of the Company in which dividend or distribution includes Common Stock, the conversion price in effect at the opening of business on the day following the date day fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In Subject to the last sentence of paragraph (7) of this Section, in case the Company shall pay or make a dividend or other distribution on its Common Stock consisting exclusively of, or shall otherwise issue rights, options or warrants to all holders of its Common Stock Stock, rights or warrants entitling them the holders thereof to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) 8) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will shall not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case the event that outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case the event that outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case Subject to the last sentence of this paragraph (4) and the provisions of paragraph (7), in the event that the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rightsCapital Stock, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) cash or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) excluding any dividend or distribution paid exclusively in cash, (iii) cash and excluding any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliessection), the conversion price shall be adjusted so that the same shall reduced to be equal to the price determined by multiplying the conversion price in effect immediately prior to the close effectiveness of business on the date fixed for the determination of stockholders entitled to receive such distribution conversion price reduction contemplated by this paragraph (4) by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) 8) of this Section) of the Common Stock on the date fixed for of such determination effectiveness less the then fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with Resolution), on the Trustee) date of such effectiveness, of the portion of the assetsevidences of indebtedness, shares or evidences of indebtedness Capital Stock, cash and other assets so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment reduction to become effective immediately prior to the opening of business on the day following the later of (a) the date fixed for the determination payment of stockholders entitled such distribution and (b) the date 20 days after the notice relating to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, given pursuant to Section 17.06(a) (such later date of (a) and (b) being referred to as the conversion price shall be immediately readjusted effective as of the date that "Reference Date"). If the Board of Directors determines not the fair market value of any distribution for purposes of this paragraph (4) by reference to make 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 pursuant to the conversion price paragraph (8) of this Section. For purposes of this paragraph (4), any dividend or distribution that would have been in effect if such determination date had not been fixed. In the event the then fair market value includes shares of Common Stock, rights or warrants to subscribe for or purchase shares of Common Stock or other securities convertible into or exchangeable for shares of Common Stock shall be deemed instead to be (as so determineda) of the portion a dividend or distribution of the evidences of indebtedness, cash, assets or shares of Capital Stock other than such shares of Common Stock, such rights or warrants or such other convertible or exchangeable securities (making any class of capital stock or other property so distributed is equal conversion price reduction subject to or greater than this paragraph (4)), immediately followed by (b) in the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount case of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock or such rights or warrants, a dividend or distribution thereof (other than making any reclassification upon a consolidation further conversion price reduction subject to paragraph (1) or merger to which Section 14.11 applies(2) of this Section, except (i) the Reference Date of such dividend or distribution as defined in this paragraph (4) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “substituted for "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution” " or "the date fixed for the determination of stockholders entitled to receive such rights or warrants" and “"the date fixed for such determination” " within the meaning of paragraphs (1) and (2) of this Section and (ii) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of paragraph (41) of this Section), and ) or (bc) a subdivision or combination, as in the case may beof such other convertible or exchangeable securities, a dividend or distribution of the such number of shares of Common Stock outstanding immediately prior to such reclassification into as would then be issuable upon the number of shares of Common Stock outstanding immediately thereafter (and conversion or exchange thereof, whether or not the effective date conversion or exchange of such reclassification securities is subject to any conditions (making any further conversion price reduction subject to paragraph (1) of this Section, except (i) the Reference Date of such dividend or distribution as defined in this paragraph (4) shall be substituted as "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution" and "the date fixed for such determination" and (ii) the shares deemed to constitute such dividend or distribution shall not be “deemed "outstanding at the day upon which close of business on the date fixed for such subdivision becomes effective” or “the day upon which such combination becomes effective”determination", as the case may be, and “the day upon which such subdivision or combination becomes effective” each within the meaning of paragraph (31) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture (Bergen Brunswig Corp)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date dated fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the retained earnings of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4) of this Section), ) and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”, ," as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days Trading Days before, and ending not later than, the earlier of the day in question and the day before the “"ex” " date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the last reported last sale sales price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the Nasdaq National Market, or, if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or quoted on the Nasdaq National Market, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors Company for that purpose purpose. 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 Common Stock trades regular way on such exchange or in such market without the absence of any right to receive such quotations, as determined by the Board of Directors in good faithissuance or distribution.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish that any event treated for federal income tax to any holders of shares of Common Stock resulting from any purposes as a dividend or distribution of stock or issuance of stock rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall not be final and conclusive.
(8) The Company may make such decreases taxable to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposesrecipients.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Adjustment of Conversion Price. (1) In case at any time after February 20, 1986 the Company shall pay or make a dividend or other distribution on any class or series of capital stock of the Company in Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes purpose of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case at any time after February 20, 1986 the Company shall issue rights, options rights or warrants to all holders of any class or series of its Common Stock capital stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case at any time after February 20, 1986 outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case at any time after February 20, 1986 outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case at any time after February 20, 1986 the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences evidence of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the earned surplus of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the TrusteeResolution) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 1311 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing prices Closing Market Prices Per Share for the five 30 consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 30 trading days before, and ending not later than, the earlier of before the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithquestion.
(7) The Company may make such reductions in the conversion priceConversion Price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish that any event treated for United States Federal income tax to any holders of shares of Common Stock resulting from any purposes as a dividend or distribution of stock or issuance of stock rights or warrants shall not be taxable to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusiverecipients.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price Conversion Price shall be required unless such adjustment would require an increase or decrease of at least one percent 1% in such conversion pricethe Conversion Price; provided, however, that any adjustment adjustments which by reason of this paragraph (93) is 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 1/10,000 one-thousandth of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock Capital Stock of the Company in shares of Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all or substantially all holders of its shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock (or securities convertible into or exchangeable for Common Stock) at a price per share (or having a conversion or exchange price per share) less than the current market price per share (determined as provided in paragraph (6) of this SectionSection 10.4) of the shares of Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering subscription price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion of exchange price of the convertible or exchangeable securities so offered) would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any In the event that all of the shares of Common Stock subject to such date fixed for such determination, any such rights, options rights or warrants are have not in fact issuedbeen issued when such rights or warrants expire, or are not exercised prior to the expiration thereof, then the conversion price shall promptly be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, readjusted to the conversion price that which would have been then be in effect if had the unexercised rights, options adjustment upon the issuance of such rights or warrants had never been granted made on the basis of the actual number of shares of Common Stock issued upon the exercise of such rights or such determination date had not been fixed, as the case may bewarrants. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stockshares, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stockshares, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its shares of Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding any (ia) any rights, options rights or warrants referred to in paragraph (2) of this SectionSection 10.4, (iib) any dividend or distribution paid exclusively in cash, not prohibited by Section 4.6 hereof and (iiic) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies10.4), 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 date day fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the shares of Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, Directors of the Company (whose determination shall be conclusive and described in a resolution of the Board Resolution of Directors of the Company filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable allocable to one share of Common Stock and the denominator shall be such current market price per share of the shares of Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification In case the shares of Common Stock shall be changed into securities other than Common Stock the same or a different number of shares of any class or classes of stock, whether by capital reorganization, reclassification, or otherwise (other than any reclassification upon a consolidation subdivision or merger to which Section 14.11 applies) shall be deemed to involve (a) combination of shares or a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of stock dividend described in paragraph (41) or (3) of this SectionSection 10.4, or a consolidation, merger or sale of assets described in Section 10.10), then and (b) a subdivision in each such event the Holders of Securities shall have the right thereafter to convert such Securities into the kind and amount of shares of stock and other securities and property receivable upon such reorganization, reclassification or combinationother change, as the case may be, by holders of the number of shares of Common Stock outstanding into which such Securities might have been converted immediately prior to such reorganization, reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section)change.
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing prices Closing Prices for the five 15 consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 30 and not less than 20 trading days before, and ending not later than, the earlier of the day in question and the day Business Days before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithquestion.
(7) No adjustment in the conversion price shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (7)) would require an increase or decrease of at least 1% in such price; provided, however, that any adjustments which by reason of this paragraph (7) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this paragraph (7) shall be made to the nearest cent.
(8) The Company may may, but shall not be required to, make such reductions in the conversion price, in addition to those required by paragraphs paragraph (1), (2), (3), (4) and (45) of this Section, Section 10.4 as it the Company's Board of Directors considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasonsreason. The Company Company's Board of Directors shall have the power to resolve any ambiguity or correct any error in the adjustments made pursuant to this section Section 10.4 and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment The adjustments provided for in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article Section 10.4 shall be made to the nearest cent or to the nearest 1/10,000 of a share, as the case may besuccessively whenever any event listed above shall occur.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) 8) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rightsstock, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities(including Securities, but excluding any (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this -63- 73 Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 12.11 applies), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) 8) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. IfNotwithstanding the foregoing, in the event that the Company shall distribute rights or warrants (other than those referred to in paragraph (2) of this Section) ("Rights") pro rata to holders of Common Stock, the Company shall make proper provision so that each Holder of a Security who converts such Security (or any portion thereof) after any such the record date fixed for determination, any such distribution is not and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in fact madeaddition to the shares of 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 Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion price shall be immediately readjusted effective as 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 date that number of shares of Common Stock into which the Board principal amount of Directors determines not to make such distribution, the Security so converted was convertible immediately prior to the conversion price that Distribution Date would have been entitled on the Distribution Date in effect if accordance with the terms and provisions of and applicable to the Rights.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which Section 12.11 applies or as part of a distribution referred to in paragraph (4) of this Section) in an aggregate amount that, combined together with (I) the aggregate amount of any other distributions to all holders of its Common Stock made exclusively in cash within the 12 months preceding the date of payment of such determination date had not distribution and in respect of which no adjustment pursuant to this paragraph (5) has been fixed. In made and (II) the event aggregate of any cash plus the then fair market value (as so determineddetermined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the evidences Common Stock concluded within the 12 months preceding the date of indebtednesspayment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made, shares exceeds 12.5% of any class the product of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date, then, and in lieu each such case, immediately after the close of business on such date for determination, 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 date fixed for determination of the foregoing adjustment, adequate provision stockholders entitled to receive such distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined amount over such 12.5% and (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the 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 expiration of such tender offer, of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made, exceeds 15% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the conversion price shall be adjusted so that each Holder the same shall equal the price determined by multiplying the conversion price immediately prior to close of business on the date of the Expiration Time by a Security fraction (i) the numerator of which shall have be equal to (A) the right to receive upon conversion product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time and (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time less (B) the amount of such evidences cash plus the fair market value (determined as aforesaid) of indebtednessthe aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time and (B) the number of shares of Common Stock outstanding (including any class tendered shares) as of capital stock or other property the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such Holder would have received had such Holder converted each Security on such datemaximum, being referred to as the "Purchased Shares").
(57) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 12.11 applies) shall be deemed to involve (a) a distribution of such securities Securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”, ," as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) 8) For the purpose of any computation under paragraphs (2), (4), (5) and (46) of this Section, the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing prices Closing Prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days before, and ending not later than, the earlier of ten Business Days before the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithquestion.
(79) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1l), (2), (3), (4), (5) and (46) of this Section, as it considers to be advisable in order to avoid or diminish that any event treated for Federal income tax to any holders of shares of Common Stock resulting from any purposes as a dividend or distribution of stock or issuance of stock rights or warrants shall not be taxable to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusiverecipients.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or 10) Notwithstanding any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) other provision of this section as it considers Section 12.4, the Company shall not be required to be advisable in order to avoid or diminish make any income tax to any holders adjustment of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment (together with any prior adjustments that were not made as a result of this clause (10)) would require an increase or decrease of at least one percent in 1% of such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture (Analog Devices Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustments from time to time as follows:
(1a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1a), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2b) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6h) of this SectionSection 12.4) of the Common Stock on the record date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2b), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rightsstock, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities(including Notes, but excluding any (i) any rights, options or warrants referred to in paragraph (2b) of this SectionSection 12.4, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1a) of this Section 12.4 and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 12.11 applies), 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 close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6h) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. IfNotwithstanding the foregoing, in the event that the Company shall distribute rights or warrants (other than those referred to in paragraph (b) of this Section 12.4) ("Rights") pro rata to holders of Common Stock, the Company shall make proper provision so that each Holder of a Note who converts such Note (or any portion thereof) after any such the record date fixed for determination, any such distribution is not and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in fact madeaddition to the shares of 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 Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion price shall be immediately readjusted effective as 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 date that number of shares of Common Stock into which the Board principal amount of Directors determines not to make such distribution, the Note so converted was convertible immediately prior to the conversion price that Distribution Date would have been entitled on the Distribution Date in effect if accordance with the terms and provisions of and applicable to the Rights.
(e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which Section 12.11 applies or as part of a distribution referred to in paragraph (d) of this Section 12.4) in an aggregate amount that, combined together with (i) the aggregate amount of any other distributions to all holders of its Common Stock made exclusively in cash within the 12 months preceding the date of payment of such determination date had not distribution and in respect of which no adjustment pursuant to this paragraph (e) has been fixed. In made and (ii) the event aggregate of any cash plus the then fair market value (as so determinedreasonably determined by the Board of Directors, whose determination shall be described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the evidences Common Stock concluded within the 12 months preceding the date of indebtednesspayment of such distribution and in respect of which no adjustment pursuant to paragraph (f) of this Section 12.4 has been made, shares exceeds 15% of any class the product of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution multiplied by the number of shares of Common Stock outstanding on such date, then, and in lieu each such case, immediately after the close of business on such date for determination, 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 date fixed for determination of the foregoing adjustment, adequate provision stockholders entitled to receive such distribution by a fraction (1) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (h) of this Section 12.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined amount over such 15% and (y) the number of shares of Common Stock outstanding on such date for determination and (2) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (h) of this Section 12.4) of the Common Stock on such date for determination.
(f) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance, up to any maximum specified in the terms of the tender offer, of Purchased Shares as defined below) of an aggregate consideration having a fair market value (as reasonably determined by the Board of Directors, whose determination shall be described in a Board Resolution) that combined together with (i) the aggregate of the cash plus the fair market value (as reasonably determined by the Board of Directors, whose determination shall be described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to this paragraph (f) has been made and (ii) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to paragraph (e) of this Section has been made, exceeds 15% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (h) of this Section 12.4) as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Price shall be adjusted so that each Holder the same shall equal the price determined by multiplying the Conversion Price immediately prior to close of business on the date of the Expiration Time by a Security fraction (1) the numerator of which shall have be equal to (x) the right to receive upon conversion product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (h) of this Section) on the date of the Expiration Time and (B) the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time less the amount of such evidences cash plus the fair market value (determined as aforesaid) of indebtednessthe aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares, and (2) the denominator of which shall be equal to the product of (q) the current market price per share of the Common Stock (determined as provided in paragraph (h) of this Section) as of the Expiration Time and (r) the number of shares of Common Stock outstanding (including any class tendered shares) as of capital stock or other property the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such Holder would have received had such Holder converted each Security on such datemaximum, being referred to as the "Purchased Shares").
(5g) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 12.11 applies) shall be deemed to involve (ai) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4d) of this SectionSection 12.4), and (bii) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”, ," as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3c) of this SectionSection 12.4).
(6h) For the purpose of any computation under paragraphs (2b), (d), (e) and (4f) of this SectionSection 12.4, the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing prices Closing Prices for the five consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days before, and ending not later than, the earlier of ten Trading Days before the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithquestion.
(7i) The Company may make such reductions in the conversion priceConversion Price, in addition to those required by paragraphs (1a), (2b), (3c), (d), (e) and (4f) of this Section, as it considers to be advisable advisable, which determination shall be conclusive.
(j) Notwithstanding the foregoing, (i) if the options, rights or warrants described in order Section 12.4(b) above are exercisable only upon the occurrence of certain triggering events, then the conversion price will not be adjusted until such triggering events occur and (ii) if such options, rights or warrants expire unexercised, the conversion price will be readjusted to avoid take into account only the actual number of such options, rights or diminish warrants which were exercised. In addition, the provisions of Section 12.4(a), (b), (c), (d), (e) and (f) will not apply to the issuance of Common Stock or the issuance or exercise of options to purchase Common Stock under any income tax stock-based employee compensation plan now existing or hereafter adopted.
(k) In the event of a pro rata distribution to any holders of Common Stock of rights to subscribe for additional shares of Common Stock resulting from (other than those referred to in Section 12.4(b) above) or of evidences of indebtedness or assets as provided in Section 12.4(d) above, the Company may, instead of making any dividend adjustment in the Conversion Price, make proper provision so that each Holder of a Note who converts such Note (or a portion thereof) after the record date for such distribution and prior to the expiration or redemption of stock or issuance of such rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases entitled to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter termreceive upon conversion, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of the shares of Common Stock resulting from issuable upon conversion, an appropriate number of such rights, evidences of indebtedness or assets, as the case may be, as if such Holders had converted the Notes immediately before the Record Date for any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposesdistribution.
(9l) No adjustment in Notwithstanding any other provision of this Section 12.4, the conversion price Company shall not be required to make any adjustment of the Conversion Price unless such adjustment (together with any prior adjustments that were not made as a result of this clause (j)) would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion 1% of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basisPrice.
Appears in 1 contract
Sources: Indenture (Signature Resorts Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) 8) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately propor tionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision sub division or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rightsstock, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or (including securities, but excluding any (i) any rights, options rights or warrants referred to in paragraph para graph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 12.11 applies), 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 close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) 8) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness indebted ness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the -165- 177 day following the date fixed for the determination of stockholders entitled to receive such distribution. IfNotwithstanding the foregoing, after in the event that the Company shall distribute rights or warrants (other than those referred to in paragraph (2) of this Section) ("Rights") pro rata to holders of Common Stock, including any such Rights that the Company has distributed pursuant to the Rights Agreement, dated as of February 3, 1994, between the Company and the First National Bank of Boston, as Rights Agent, the Company shall make proper provision so that each Holder of a Security who converts such Security (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 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 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 applic able 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 Common Stock into which the principal amount of the 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; PROVIDED, HOWEVER, that if after the Distribution Date with respect to such Rights converting Holders of Securities are not entitled to receive the Rights that would otherwise be attributable (but for the date of conversion) to their respective Conversion Shares or such Rights are not issued to them upon conversion for any reason, then adjustment of the Conversion Price shall be made under this paragraph, except the Distribution Date with respect to such Rights shall be substituted as "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination"; PROVIDED, FURTHER, that -166- 178 that if such an adjustment is made and such Rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment of the Conversion Price shall be made to the Conversion Price, on an equitable basis, to take account of such event.
(5) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which Section 12.11 applies or as part of a distribution referred to in paragraph (4) of this Section) in an aggregate amount that, combined together with (I) the aggregate amount of any other distributions to all holders of its Common Stock made exclusively in cash within the 12 months preceding the date of payment of such distribution is not and in fact made, respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the conversion price shall be immediately readjusted effective as aggregate of any cash plus the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determineddetermined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the evidences Common Stock concluded within the 12 months preceding the date of indebtednesspayment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made, shares exceeds 12.5% of any class the product of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date, then, and in lieu each such case, immediately after the close of business on such date for determination, 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 date fixed for determination of the foregoing adjustment, adequate provision stockholders entitled to receive such distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined amount over such 12.5% and (y) the number of
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the 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 expiration of such tender offer, of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made, exceeds 12.5% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Price shall be adjusted so that each Holder the same shall equal the price determined by multiplying the Conversion Price immediately prior to close of business on the date of the Expiration Time -168- 180 by a Security fraction (i) the numerator of which shall have be equal to (A) the right to receive upon conversion product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time and (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time less (B) the amount of such evidences cash plus the fair market value (determined as aforesaid) of indebtednessthe aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time and (B) the number of shares of Common Stock outstanding (including any class tendered shares) as of capital stock or other property the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such Holder would have received had such Holder converted each Security on such datemaximum, being referred to as the "Purchased Shares").
(57) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).. -169- 181
(6) 8) For the purpose of any computation under paragraphs (2) and ), (4), (5) or (6) of this SectionSection 12.4, the current market price per share of Common Stock on any day date shall be calculated by the Company and be deemed to be the average of the daily closing prices Closing Prices Per Share for the five consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days 10 Trading Days before, and ending not later than, the earlier of the day in question and the day before the “"ex” " date with respect to the issuance or distribution requiring such computation. For purposes of this purposeparagraph, the term “"'ex” ' date", when used with respect to any issuance or distribution, shall mean means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(79) No adjustment in the Conversion Price shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such price; PROVIDED, HOWEVER, that any adjustments which by reason of this paragraph (9) 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.
(10) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion priceConversion Price, for the remaining term of the securities of a series that is convertible Securities or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (46) of this section Section 12.4, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture (Staples Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced so that the same shall equal the price determined by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares of Common Stock constituting such dividend or other distribution, such reduction to become effective immediately after at the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case at any time the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the then current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for such determination shall be reduced so that the same shall equal the price determined by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after at the opening of business on the day following the date fixed for such determination. If; provided, after however, that if an adjustment to the Conversion Price is made and any such date fixed for such determination, any or all of such rights, options or and warrants are not in fact issuedexercised, or are not exercised prior to then a corresponding reversing adjustment of the expiration thereof, the conversion price Conversion Price shall be immediately readjustedmade, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrantson an equitable basis, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or take account of such determination date had not been fixed, as the case may beevent. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after at the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rightsstock, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or (including securities, but excluding any (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cashcash out of the retained earnings of the Company, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in shares issued upon any merger or consolidation to which Section 14.11 1211 applies), 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 close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of DirectorsDirectors of the Company, whose determination shall be conclusive and described in a Company Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 1211 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” ," within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this SectionSection 1204, the current market price per share of Common Stock on any day date shall be calculated by the Company and be deemed to be the average of the daily closing prices Closing Prices Per Share for the five consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days 10 Trading Days before, and ending not later than, the earlier of the day in question and the day before the “ex” date "ex date" with respect to the issuance or distribution requiring such computation. For purposes of this purposeparagraph, the term “ex” "ex date, ," when used with respect to any issuance or distribution, shall mean means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) No adjustment in the Conversion Price shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (7)) would require an increase or decrease of at least one percent in such Conversion Price; provided, however, that any adjustments which by reason of this paragraph (7) 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-thousandth of a share, as the case may be.
(8) The Company may make such reductions in the conversion priceConversion Price, for the remaining term of any series of Securities or any shorter term, in addition to those required by paragraphs (1), (2), (3) and (4) of this SectionSection 1204, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture (Thermo Electron Corp)
Adjustment of Conversion Price. The conversion price shall be subject to adjustment from time to time as follows:
(1a) In case the Company shall pay or make a dividend or other distribution on any class of its capital stock in shares of the Company in its Common Stock, then the conversion price in effect at the opening of business on the day following the record date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock issued and outstanding at the close of business on the such record date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such . Such reduction to shall become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Companyrecord date.
(2b) In case the Company shall issue rights, options or warrants to all holders of its outstanding shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the record date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan)warrants, then the conversion price in effect at the opening of business on the day following the such record date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the such record date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the such record date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such . Such reduction to shall become effective immediately after the opening of business on the day following such record date. Notwithstanding the date fixed for such determination. Ifforegoing, after any such date fixed for such determination, any such in case the Company shall issue rights, options or warrants (“Stockholder Rights”) to all holders of its Common Stock entitling the holders thereof to subscribe for or purchase shares of Common Stock, which rights or warrants (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable and (iii) are also issued in fact issuedrespect of future issuances of Common Stock, in each case until the occurrence of a specified event or events, such Stockholder Rights shall for purposes of this Section 12.4 not be deemed issued or distributed until the occurrence of the earliest of such specified events and the conversion price shall not be reduced until the occurrence of such earliest specified event. If the conversion price is reduced pursuant to this paragraph (b) as a result of any rights, warrants or options that are issued by the Company and if at the end of the period during which such warrants, options, or rights are exercisable, not exercised prior to the expiration thereofall such warrants, options or rights shall have been exercised, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not readjusted to issue any such rights, options or warrants, to the conversion price that what it would have been in effect if had the unexercised rights, options or warrants had never above fraction been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), computed based on the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable actually issued in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rightssuch warrants, options or warrants in respect of shares of Common Stock held in rights, as the treasury of the Companycase may be.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, then the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, converselyreduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the day upon which such subdivision becomes effective before giving effect to such subdivision and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the day such subdivision becomes effective after giving effect to such subdivision. Conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, then the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, increased by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the day upon which such combination becomes effective before giving effect to such combination and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the day such combination becomes effective after giving effect to such combination. Such reduction or increase, as the case may be, to shall become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rightsan issuance, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph paragraphs (1a) and (b) of this Section and paid exclusively in cash or upon the dissolution, liquidation or winding up of the Company or (ivii) any consideration distributed in any merger or consolidation to which Section 14.11 appliesStockholder Rights), 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 the close of business on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the such record date fixed for such determination less minus the then fair market value (as determined by the Board of DirectorsDirectors of the Company, whose determination shall be conclusive and described in a Board Resolution filed with the TrusteeResolution) of the portion of the assets, shares or evidences of indebtedness or assets so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock on such record date. Such adjustment shall become effective immediately prior to the opening of business on the day following such record date.
(e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (d) of this Section) in an aggregate amount that, together with the aggregate amount of any other distributions to all holders of its Common Stock made exclusively in cash within the l2 months preceding the date of payment of such distribution and in respect of which no conversion price adjustment pursuant to this paragraph (e) has been made, exceeds 10% of the product of the current market price per share of the Common Stock on the date fixed for the determination of stockholders entitled to receive such distribution multiplied by the number of shares of Common Stock outstanding on such date, then 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 paragraph (e) by a fraction of which the numerator shall be the current market price per share of the Common Stock on such date minus the amount of cash so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to . Such reduction shall become effective immediately prior to the opening of business on the day date following the date fixed for the determination payment of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5f) The reclassification of Common Stock into securities other than Common Stock (other than excluding any reclassification upon a merger or consolidation or merger to which Section 14.11 12.12 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the record date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4d) of this Section). If such reclassification changes the number of outstanding shares of Common Stock, and then such reclassification shall be deemed (bin addition to any effect provided in the previous sentence) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3c) of this Section).
(6g) For No adjustment in the purpose conversion price shall be required unless such adjustment would require an increase or decrease of at least 1% in such price; provided that any computation adjustment which by reason of this paragraph (g) is 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 1/100th of a share, as the case may be. No adjustment in the conversion price shall be required for any increase or decrease in the par value of the Common Stock.
(h) In addition to the adjustments in conversion price required by paragraphs (2a), (b), (c), (d), (e) and (4f) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected Company may from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may its discretion make such reductions decreases in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, price as it considers to be advisable in order to avoid advisable, including for purposes of avoiding or diminish diminishing any federal income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for federal income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusivereason.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or i) Notwithstanding any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) other provision of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; providedArticle XII, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon shall result in zero or in a negative number or shall reduce the issuance conversion price below the then par value per share of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, and any such Holders purported adjustment shall receive rights in addition instead reduce the conversion price to such par value, unless the Common Stock upon then has no par value, in which case such purported adjustment shall instead reduce the conversion of such Securitiesprice to $.01 per share. If Holders The Company hereby covenants not to take any action to increase the par value per share of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock.
(j) For the purpose of any computation in this Article, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders current market price per share of Common Stock on any date shall be deemed to be the average of the closing prices for the 5 consecutive days (on which securities exchanges are open for trading) preceding such date of determination. The closing price for each day shall be the last reported sales price regular way or, if no such separation. If reported sale takes place on such an adjustment day, the average of the reported closing bid and asked prices regular way, in either case as reported for consolidated transactions on the New York Stock Exchange or, if the Common Stock is made not listed or admitted to trading on the New York Stock Exchange, on the principal national securities exchange on which the Common Stock is listed or admitted to trading or, if the Common Stock is not so listed or admitted to trading, on the Nasdaq Stock Market or, if the Common Stock is not so listed or admitted to trading, the average of the closing bid and asked prices (or if closing bid and asked prices or not available, the average of the high bid and low asked prices for such rights are later redeemed, invalidated day) in the over-the-counter market as published by the appropriate regulatory organization or terminated, then a corresponding reversing adjustment will be made if not so published as furnished by any New York Stock Exchange member firm selected from time to time by the Conversion Rate on an equitable basisCompany.
Appears in 1 contract
Sources: Indenture (Xto Energy Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock payable in shares of the Company in Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced increased by multiplying dividing such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price Conversion Price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price Conversion Price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price per share (determined as provided in paragraph (6) of this SectionSection 12.04) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a dividend reinvestment planSecurity into shares of Common Stock without any action required by the Company or any other Person), the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for such determination shall be reduced increased by multiplying dividing such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price Conversion Price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrantswan-ants, to the conversion price Conversion Price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants wan-ants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reducedincreased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately increasedreduced, such reduction increase or increasereduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, . but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SectionSection 12.04, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section 12.04 and (iv) any consideration distributed in any merger mergers or consolidation consolidations to which Section 14.11 12.11 applies), the conversion price Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying dividing the conversion price Conversion Price in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this SectionSection 12.04) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directorsdirectors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, If after any such date fixed for determination, any such distribution is not in fact made, the conversion price Conversion Price shall be immediately readjusted readjusted, effective as of the date that of the Board of Directors determines not to make such distribution, to the conversion price Conversion Price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4) of this SectionSection 12.04), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this SectionSection 12.04).
(6) For the purpose of any computation under paragraphs (2) and or (4) of this SectionSection 12.04, the current market price per share of Common Stock on any day date shall be deemed to calculated by the Company and be the average of the daily closing prices Closing Prices Per Share for the five consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days 10 Trading Days before, and ending not later than, than the earlier of the day in question and the day before the “"ex” " date with respect to the issuance or distribution requiring such computation. For purposes of this purposeparagraph, the term “"‘ex” ' date, ," when used with respect to any issuance or distribution, shall mean means the first date on which the Common Stock trades the regular way in the applicable securities market or on the applicable securities exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) No adjustment in the Conversion Price shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (7)) would require an increase or decrease of at least 1.0% in such price; provided, however, that any adjustments which by reason of this paragraph (7) 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.
(8) The Company may make such reductions decreases in the conversion priceConversion Price, for the remaining term of the Securities or any shorter term, in addition to those required by paragraphs (1), (2), (3) and (4) of this SectionSection 12.04, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasonspurposes. The Company shall have the power to resolve any ambiguity or correct any error pursuant to in this section paragraph (8) and its actions in so doing shall shall, absent manifest error, be final and conclusive.
(8) The Company may make such decreases to 9) Notwithstanding the conversion priceforegoing provisions of this Section, for the remaining term no adjustment of the securities of a series that is convertible or any shorter term, in addition to those Conversion Price shall be required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders made (a) upon the issuance of shares of Common Stock resulting from pursuant to any dividend present or distribution future plan for the reinvestment of stock dividends or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9b) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 because of a share, as tender or exchange offer of the case may becharacter described in Rule l 3e-4(h)(5) under the Exchange Act or any successor rule thereto.
(10) To the extent permitted by applicable law, the Company from time to time may decrease reduce the conversion price Conversion Price by any amount for any period of time of if the period is at least twenty (20) days, the decrease being is irrevocable during such period, provided period and the Board of Directors shall have made a determination that such decrease reduction would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price Conversion Price is decreased reduced pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer give notice of the Company stating reduction to the decreased conversion price and Holders in the period during which it will be manner provided in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 1.06 at least fifteen (15) days prior to the date the decreased conversion price reduced Conversion Price takes effect.
(11) There , and such notice shall be no adjustment to state the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion decreased Conversion Price and the Conversion Rate, in such case, period during which it will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basisin effect.
Appears in 1 contract
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company its Common Stock exclusively in Common Stock, the conversion price in effect at the opening of business on the day next following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day next following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall pay or make a dividend or other distribution on its Common Stock consisting exclusively of, or shall otherwise issue rights, options or warrants to all holders of its Common Stock Stock, rights, warrants or options entitling them the holders thereof to subscribe for or purchase shares of Common Stock at a price per share less than the current market 77 71 price per share (determined as provided in paragraph (67) of this SectionSection 13.04) of the Common Stock on the date fixed for the determination of stockholders shareholders entitled to receive such rights, options warrants or warrants (other than pursuant to a dividend reinvestment plan)options, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will shall not issue any rights, warrants or options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In Subject to the last sentence of this paragraph (4), in case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock stock, securities, cash or rights, options or warrants to subscribe for or purchase shares of any class of capital stock property (other than excluding any rights, warrants or options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SectionSection 13.04, (ii) any dividend or distribution paid exclusively in cash, (iii) cash and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies13.04), the conversion price shall be adjusted reduced so that the same shall equal the price determined by multiplying the conversion price in effect immediately prior to the close effectiveness of business on the date fixed for the determination of stockholders entitled to receive such distribution conversion price reduction contemplated by this paragraph (4) by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (67) of this SectionSection 13.04) of the Common Stock on the date fixed for of such determination effectiveness less the then fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with and shall, in the Trustee) case of securities being distributed for which prior thereto there is an actual or when issued trading market, be no less than the value determined by reference to the average of the closing prices in such market over the period specified in the succeeding sentence), on the date of such effectiveness, of the portion of the assetsevidences of indebtedness, shares or evidences of indebtedness capital stock, securities, cash and property so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment reduction to become effective immediately prior to the opening of business on the day next following the later of (a) the date fixed for the determination payment of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.78 72
Appears in 1 contract
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on its Series A Common Stock exclusively in Series A Common Stock or shall pay or make a dividend or other distribution on any other class of capital stock of the Company in which dividend or distribution includes Series A Common Stock, the conversion price in effect at the opening of business on the day following the date day fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Series A Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Series 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 Series A Common Stock. The Company will shall not pay any dividend or make any distribution on shares of Series A Common Stock held in the treasury of the Company.
(2) In Subject to the last sentence of paragraph (7) of this Section, in case the Company shall pay or make a dividend or other distribution on its Series A Common Stock consisting exclusively of, or shall otherwise issue rights, options or warrants to all holders of its Series A Common Stock Stock, rights or warrants entitling them the holders thereof to subscribe for or purchase shares of Series A Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) 8) of this Section) of the Series A Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Series A Common Stock outstanding at the close of business 60 69 on the date fixed for such determination plus the number of shares of Series A Common Stock that which the aggregate of the offering price of the total number of shares of Series A Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Series A Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Series A Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Series 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 Series A Common Stock. The Company will shall not issue any rights, options rights or warrants in respect of shares of Series A Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Series A Common Stock shall be subdivided into a greater number of shares of Series A Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Series A Common Stock shall each be combined into a smaller number of shares of Series A Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In Subject to the last sentence of this paragraph (4), in case the Company shall, by dividend or otherwise, distribute to all holders of its Series A Common Stock evidences of its indebtedness, shares of any class of capital stock or rightsstock, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or (including securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) excluding any dividend or distribution paid exclusively in cash, (iii) cash and excluding any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), the conversion price shall be adjusted reduced so that the same shall equal the price determined by multiplying the conversion price in effect immediately prior to the close effectiveness of business on the date fixed for the determination of stockholders entitled to receive such distribution conversion price reduction contemplated by this paragraph (4) by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) 8) of this Section) of the Series A Common Stock on the date of such effectiveness less the 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 date of such effectiveness, of the portion of the evidences of indebtedness, shares of capital stock, cash and assets so distributed applicable to one share of Series A Common Stock and the denominator shall be such current market price per share of the Series A Common Stock, such reduction to become effective immediately prior to the opening of business on the day following the later of (a) the date fixed for the payment of such distribution and (b) the date 20 days after the notice relating to such distribution is given pursuant to Section 1306(a) (such later date of (a) and (b) being referred to as the "Reference Date"). If the Board of Directors determines the fair market value of any distribution for purposes of this paragraph (4) 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 pursuant to paragraph (8) of this Section. For purposes of this paragraph (4), any dividend or distribution that includes shares of Series A Common Stock, rights or warrants to subscribe for or purchase shares of Series A Common Stock or other securities convertible into or exchangeable for shares of Series A Common Stock shall be deemed instead to be (a) a dividend or distribution of the evidences of indebtedness, cash, assets or shares of capital stock other than such shares of Series A Common Stock, such rights or warrants or such other convertible or exchangeable securities (making any conversion price reduction required by this paragraph (4)), immediately followed by (b) in the case of such shares of Series A Common Stock or such rights or warrants, a dividend or distribution thereof (making any further conversion price reduction required by paragraph (1) or (2) of this Section, except (i) the Reference Date of such dividend or distribution as defined in this paragraph (4) shall be substituted for "the date fixed for the determination of stockholders entitled 61 70 to receive such distribution" and "the date fixed for such determination" within the meaning of paragraphs (1) and (2) of this Section and (ii) any shares of Series A Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of paragraph (1) of this Section) or (c) in the case of such other convertible or exchangeable securities, a dividend or distribution of such number of shares of Series A Common Stock as would then be issuable upon the conversion or exchange thereof, whether or not the conversion or exchange of such securities is subject to any conditions (making any further conversion price reduction required by paragraph (1) of this Section, except (i) the Reference Date of such dividend or distribution as defined in this paragraph (4) shall be substituted as "the date fixed for the determination less of stockholders entitled to receive such distribution" and "the then date fixed for such determination" and (ii) the shares deemed to constitute such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination", each within the meaning of paragraph (1) of this Section).
(5) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Series A Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section) in an aggregate amount that, together with (i) the aggregate amount of any other distributions to all holders of its Series A Common Stock made exclusively in cash within the 12 months preceding the date of payment of such distribution and in respect of which no conversion price adjustment pursuant to this paragraph (5) has been made and (ii) the 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 filed with Resolution) of consideration payable in respect of any tender offer by the TrusteeCompany or a Subsidiary for all or any portion of the Company's Series A Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no conversion price adjustment pursuant to paragraph (6) of this Section has been made, exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the portion Series A Common Stock on the date fixed for stockholders entitled to receive such distribution, times the number of shares of Series A Common Stock outstanding on such date, 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 assets, shares or evidences conversion price reduction contemplated by this paragraph (5) by a fraction of indebtedness which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Series A Common Stock on the date of such effectiveness less the amount of cash so distributed applicable to one share of Series A Common Stock and the denominator shall be such current market price per share of the Series A Common Stock, such reduction to become effective immediately prior to the opening of business on the later of (a) the day following the date fixed for the payment of such distribution and (b) the date 20 days after the notice relating to such distribution is given pursuant to Section 1306(a).
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Company's Series A Common Stock shall expire and such tender offer shall involve an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) on the last time (the "Expiration Time") tenders may be made pursuant to such tender offer (as it may be amended) that, together with (i) the 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 expiration of such tender offer, of consideration payable in respect of any tender offer by the Company, or a Subsidiary for all or any portion of the Company's Series A Common Stock expiring within the 12 months preceding the expiration of such tender offer and in respect of which no conversion price adjustment pursuant to this 62 71 paragraph (6) has been made and (ii) the aggregate amount of any distributions to all holders of the Company's Series A Common Stock made exclusively in cash within the 12 months preceding the expiration of such tender offer and in respect of which no conversion price adjustment pursuant to paragraph (5) of this Section has been made, exceeds 5% of the product of the current market price per share determined as provided in paragraph (8) of this Section) of the Series A Common Stock on the Expiration Time times the number of shares of Series A Common Stock outstanding (including any tendered shares) on 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 Expiration Time by a fraction of which the numerator shall be (i) the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Series A Common Stock on the Expiration Time times the number of shares of Series A Common Stock outstanding (including any tendered shares) on the Expiration Time key minus (ii) 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 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 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 date fixed for the determination of stockholders entitled to receive Expiration Time. No such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision adjustment shall be made so that each Holder of a Security shall have in the right to receive upon conversion the amount of such evidences of indebtedness, shares event of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such datepurchase pursuant to Rule 10b-18 under the Exchange Act.
(57) The reclassification of Series A Common Stock into securities including securities other than Series A Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 1310 applies) shall be deemed to involve (a) a distribution of such securities other than Series A Common Stock to all holders of Series A Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” Reference Date" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Series A Common Stock outstanding immediately prior to such reclassification into the number of shares of Series A Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” ", or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section). Rights or warrants issued by the Company to all holders of its Series A Common Stock entitling the holders thereof to subscribe for or purchase shares of Series A Common Stock, which rights or warrants (i) are deemed to be transferred with such shares of Series A Common Stock, (ii) are exercisable and (iii) are also issued in respect of future issuances of Series A Common Stock, in each case in clauses (i) through (iii) until the occurrence of a specified event or events ("Trigger Event"), shall for purposes of this Section 1304 not be deemed issued and the distribution thereof not be deemed made or paid until the occurrence of the earliest Trigger Event.
(6) 8) For the purpose of any computation under this paragraph and paragraphs (2), (4) and (45) of this Section, the current market price per share of Series A Common Stock on any day date shall be deemed to be the average of the daily closing prices Closing Prices for the five consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days Trading Days before, and ending not later than, the earlier of date in question; provided, however, that (i) if the day in question and the day before the “"ex” " date with respect to for any event (other than the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require requires an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon occurs on or after the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, 20th Trading Day prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture (Times Mirror Co /New/)
Adjustment of Conversion Price. The conversion price at which a share of Series B Cumulative Convertible Preferred Stock is convertible into Common Stock shall be subject to adjustment from time to time as follows:
(1) In case the Company Corporation shall pay or make a dividend or other distribution on its Common Stock exclusively in Common Stock or shall pay or make a dividend or other distribution on any other class of capital stock of the Company Corporation which dividend or distribution includes Common Stock or shall exchange outstanding Rights (as defined in Section 8(j) hereof) for shares of Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution or to exchange such Rights shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distributiondistribution or exchange, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company Corporation shall issue or otherwise sell or distribute shares of Common Stock for a consideration per share in cash or property less than the most recent Closing Price prior to the time of such issuance (and, if shares are issued, sold, or distributed pursuant to the exercise or conversion of options, warrants, convertible securities, or other rights, options the exercise or warrants conversion price thereof when such options, warrants, convertible securities, or rights were granted or issued was less than the Closing Price (defined below in Section 8(h) at the time of issuance of such options, warrants, convertible securities, or other rights), the conversion price then in effect shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding immediately prior to such issuance, sale or distribution plus the number of shares of Common Stock which the aggregate consideration received by the Corporation for such issuance, sale or distribution (such consideration, if other than cash, as determined by the Board of Directors, whose determination shall be conclusive and described in a vote of the Board of Directors) would purchase at the current market price per share and the denominator shall be the number of shares of Common Stock outstanding immediately after giving effecting to such issuance, sale or distribution.
(ii) In case the Corporation shall pay or make a dividend or other distribution on its Common Stock consisting exclusively of, or shall otherwise issue to all or substantially all holders of its Common Stock Stock, rights or warrants entitling them the holders thereof to subscribe for or purchase shares of Common Stock at a price per share less than the then current market price per share (determined as provided in paragraph subparagraph (6vii) of this SectionSection 8(c)) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after In case any such date fixed for such determination, any such rights, options rights or warrants are not referred to in fact issued, or are not exercised prior to the expiration thereofthis subparagraph (ii) in respect of which an adjustment shall have been made shall expire unexercised, the conversion price shall be immediately readjusted, effective as readjusted at the time of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, expiration to the conversion price that would have been in effect if no adjustment had been made on account of the unexercised rights, options distribution or warrants had never been granted issuance of such expired rights or such determination date had not been fixed, as the case may bewarrants. For the purposes of this paragraph (2Section 8(c)(ii), the number of shares of Common Stock at any time outstanding shall not include shares held if both a Distribution Date and a Section 11(a)(ii) Event (as such terms are defined in the treasury Rights Agreement by and between the Corporation and the First National Bank at Boston, dated as of September 23, 1988, as amended (the Company but "Rights Agreement")) shall include shares issuable in respect have occurred, then the later to occur of scrip certificates issued in lieu such events shall be deemed to constitute an issuance of fractions of rights to purchase shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3iii) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, and conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(41) In case the Company Corporation shall, by dividend or otherwise, distribute make a Section 8(c)(iv) Distribution (defined below in Section 8(h)) to all or substantially all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesStock, the conversion price shall be adjusted reduced so that the same shall equal the price determined by multiplying the conversion price in effect immediately prior to following the close of business on the date fixed for the determination of stockholders entitled to receive such distribution Determination Date (as defined in Section 8(h)) by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph subparagraph (6vii) of this SectionSection 8(c)) of the Common Stock on the date fixed for such determination Determination Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board Resolution filed with of Directors), on the Trustee) date of such effectiveness, of the portion of the assets, shares or evidences of indebtedness Section 8(c)(iv) Distribution so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment reduction to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distributionDetermination Date. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that If the Board of Directors so determines not as aforesaid the fair market value of any distribution for purposes of this subparagraph (iv) by reference to make the actual or when-issued trading market for any Securities comprising such distribution, to it must in doing so consider the conversion price that would have been prices in effect if such determination date had not been fixed. In market over the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, same period used in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, computing the current market price per share of Common Stock on pursuant to subparagraph (vii) of this Section 8(c).
(2) Notwithstanding the foregoing, if the Corporation elects to reserve, for distribution to the holders of the Series B Cumulative Convertible Preferred Stock upon the conversion of the shares of Series B Cumulative Convertible Preferred Stock, the evidences of the Corporation's indebtedness, shares of any day shall class of stock, or assets that would have been distributed to the holders of the Series B Cumulative Convertible Preferred Stock if they had converted their shares into shares of Common Stock so that any such holder converting shares of Series B Cumulative Convertible Preferred Stock will receive upon such conversion, in addition to the shares of the Common Stock to which such holder is entitled, the amount and kind of such evidences of the Corporation's indebtedness, shares of any class of stock, or assets which such holder would have received if such holder had, immediately prior to the Determination Date for such distribution of securities, converted its shares of Series B Cumulative Convertible Preferred Stock into Common Stock, the fair market value of the Securities shall, for purposes of this subparagraph (iv), be deemed to be zero.
(v) Subject to the average last sentence of this subparagraph (v), in case the Corporation shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (excluding any cash representing an amount per share of capital stock of the daily closing prices for Corporation to the five consecutive trading days extent such cash does not constitute an Extraordinary Equity Payment), 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 subparagraph (i.e ., Business Days on v) by a fraction of which the numerator shall be the current market price per share (determined as provided in subparagraph (vii) of this Section 8(c)) of the Common Stock is traded) selected by on the Board Determination Date less the amount of Directors commencing cash so distributed and not more than 20 trading days before, excluded as above provided applicable to one share of Common Stock and ending not later than, the earlier denominator shall be such current market price per share of the day in question and Common Stock, such reduction to become effective immediately prior to the opening of business on the day before following the “ex” date with respect Determination Date. Notwithstanding the foregoing, if the Corporation elects to reserve the cash to be distributed for distribution to the issuance or distribution requiring holders of the Series B Cumulative Convertible Preferred Stock upon the conversion of the shares of Series B Cumulative Convertible Preferred Stock so that any such computation. For this purposeholder converting shares of Series B Cumulative Convertible Preferred Stock will receive upon such conversion, in addition to the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which shares of the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive which such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such dayholder is entitled, the average amount of cash which such holder would have received if such holder had, immediately prior to the Determination Date for such distribution of cash, converted its shares of Series B Cumulative Convertible Preferred Stock into Common Stock, then the conversion price shall not be so reduced.
(vi) In case a tender or exchange offer made by the Corporation or any subsidiary of the reported closing bid and asked prices) on such date as reported in composite transactions Corporation for all or any portion of the principal national securities on which the Corporation's Common Stock is then listed shall expire and such tender or admitted to trading or, if exchange offer shall involve the payment by the Corporation or such subsidiary of consideration per share of Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter having a fair market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, value (as determined by the Board of Directors Directors, whose determination shall be conclusive and described in good faith.
a resolution of the Board of Directors) at the last time (7the "Expiration Time") The Company tenders or exchanges may make be made pursuant to such reductions tender or exchange offer (as it shall have been amended) that exceeds the current market price per share (determined as provided in the conversion price, in addition to those required by paragraphs subparagraph (1), (2), (3) and (4vii) of this SectionSection 8(c)) of the Common Stock on the Trading Day next succeeding the Expiration Time, as it considers 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 Expiration Time by a fraction of which the numerator shall be advisable in order to avoid or diminish any income tax to any holders the number of shares of Common Stock resulting from outstanding (including any dividend tendered or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated exchanged shares) on the Expiration Time multiplied by the current market price per share (determined as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions provided in so doing shall be final and conclusive.
subparagraph (8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4vii) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9Section 8(c)) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date Trading Day next succeeding the Expiration Time and the denominator shall be the sum of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to (x) the Conversion Rate on an equitable basis.fair market value (determined as
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustments, calculated by the Company, from time to time as follows:
(1a) In case the Company shall hereafter pay a dividend or make a dividend or other distribution on any class of capital stock to all holders of the Company outstanding Common Stock in shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction fraction:
(1) the numerator of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date Record Date (as defined in Section 10.04(g)) fixed for such determination and determination, and
(2) the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such . Such reduction to shall become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixedRecord Date. For the purposes purpose of this paragraph (1a), the number of shares of 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 Common StockCompany. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this Section 10.04(a) is declared but not so paid or made, the Conversion Price shall again be adjusted to the Conversion Price which would then be in effect if such dividend or distribution had not been declared.
(2b) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, and conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4c) In case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a conversion price per share) less than the Current Market Price (as defined in Section 10.04(g)) on the Record Date fixed for the determination of stockholders entitled to receive such rights 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:
(1) the numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date plus the number of shares which the aggregate offering price of the total number of shares so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding on the close of business on the Record Date plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustment shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such rights or warrants. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants the Conversion Price shall be readjusted to the Conversion Price which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible into Common Stock) actually delivered. In the event that such rights or warrants are not so issued, 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. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such Current Market Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration if other than cash, to be determined by the Board of Directors.
(d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock or shares of Capital Stock of the Company (other than any dividends or distributions to which Section 10.04(a) applies) evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) cash or other property (assets, including cash or assets or securities, but excluding (i1) any rights, options rights or warrants referred to in paragraph Section 10.04(c), (2) of this Sectionany stock, securities or other property or assets (iiincluding cash) any dividend distributed in connection with a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or distribution conveyance to which Section 10.11 hereof applies and (3) dividends and distributions paid exclusively in cashcash (the securities described in foregoing clauses (1), (iii2) and (3) hereinafter in this Section 10.04(d) called the "EXCLUDED SECURITIES"), then, in each such case (unless the Company elects to reserve such securities for distribution to the Noteholders upon the conversion of the Notes so that any dividend or distribution referred such Holder converting Notes will receive upon such conversion, in addition to in the shares of Common Stock to which such Holder is entitled, the amount and kind of such securities which such Holder would have received if such Holder had converted its Notes into Common Stock immediately prior to the Record Date), subject to the second succeeding paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies10.04(d), the conversion price Conversion Price shall be adjusted so that the same shall be equal to the price determined by multiplying the conversion price Conversion Price in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled Record Date (as defined in Section 10.04(g)) with respect to receive such distribution by a fraction fraction:
(1) the numerator of which the numerator shall be the current market price per share Current Market Price (determined as provided in paragraph (6Section 10.04(g)) of this Section) of the Common Stock on the date fixed for such determination Record Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described set forth in a Board Resolution filed with the TrusteeResolution) on such Record Date of the portion of the assets, shares or evidences of indebtedness securities so distributed (other than excluded securities) applicable to one share of Common Stock and (determined on the basis of the number of shares of the Common Stock outstanding on the Record Date), and
(2) the denominator of which shall be such current market price per share of the Common Stock, such adjustment to Current Market Price. Such reduction shall become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distributionRecord Date. IfHowever, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event that the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property securities so distributed (other than excluded securities) applicable to one share of Common Stock is equal to or greater than the current market price per share of Current Market Price on the Common Stock on such dateRecord Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion of a Note (or any portion thereof) the amount of such evidences of indebtedness, shares of any class of capital stock or securities so distributed (other property than excluded securities) such Holder would have received had such Holder converted each Security on such date.
Note (5or portion thereof) The reclassification immediately prior to 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 Common Stock into Directors determines the fair market value of any distribution for purposes of this Section 10.04(d) by reference to the actual or when issued trading market for any securities other than Common Stock comprising all or part of such distribution (other than any reclassification upon excluded securities), it must in doing so consider the prices in such market over the same period (the "REFERENCE PERIOD") used in computing the Current Market Price pursuant to Section 10.04(g) to the extent possible, unless the Board of Directors in a consolidation Board Resolution determines in good faith that determining the fair market value during the Reference Period would not be in the best interest of the Holder. Rights or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase 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 be deemed not to have been distributed for purposes of this Section 10.04(d) (and no adjustment to the effective date Conversion Price under this Section 10.04(d) will be required) until the occurrence of the earliest Trigger Event. If such reclassification right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, evidences of indebtedness or other assets or entitle the Holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be “the date of issuance and Record Date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder 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 resulted in an adjustment to the Conversion Price under this Section 10.04(d):
(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 of Common Stock with respect to such rights or warrant (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 such rights or warrants all of which shall have expired or been terminated without exercise, the Conversion Price shall be readjusted as if such rights and warrants had never been issued. No adjustment of the Conversion Price shall be made pursuant to this Section 10.04(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to holders of Notes upon conversion by such holders of Notes to Common Stock. For purposes of this Section 10.04(d) and Sections 10.04(a), 10.04(b) and 10.04(c), any dividend or distribution to which this Section 10.04(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which Section 10.04(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 10.04(c) applies (or any combination thereof), shall be deemed instead to be:
(1) a dividend or distribution of the evidences of indebtedness, assets, shares of Capital Stock, rights or warrants other than such shares of Common Stock, such subdivision or combination or such rights or warrants to which Sections 10.04(a), 10.04(b) and 10.04(c) apply, respectively (and any Conversion Price reduction required by this Section 10.04(d) with respect to such dividend or distribution shall then be made), immediately followed by
(2) a dividend or distribution of such shares of Common Stock, such subdivision or combination or such rights or warrants (and any further Conversion Price reduction required by Sections 10.04(a), 10.04(b) and 10.04(c) with respect to such dividend or distribution shall then be made), except:
(A) the Record Date of such dividend or distribution shall be substituted as (x) "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution” and “the date ," "Record Date fixed for such determination” determinations" and "Record Date" within the meaning of paragraph (4) of this SectionSection 10.04(a), and (by) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” or “" and "the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3Section 10.04(b), and (4z) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in "the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained date fixed for the purpose determination of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be stockholders entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed or warrants," "the Record Date fixed for the determination of the stockholders entitled to holders of Common Stock on the date of receive such separation. If such an adjustment is made rights or warrants" and such rights are later redeemed"Record Date" within the meaning of Section 10.04(c), invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.and
Appears in 1 contract
Sources: Indenture (Wabash National Corp /De)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the earned surplus of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 15.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (( i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for exchange, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithpurpose.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; providedprovided , howeverhowever , that any adjustment which by reason of this paragraph (9) 8) is 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 1/10,000 1/100 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture (Teucarrier (No. 3) Corp.)
Adjustment of Conversion Price. (1a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price Conversion Price in effect at the opening of business on the day Trading Day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction fraction, the numerator of which the numerator shall be the number of shares of Common Stock outstanding at the close of business the Trading Day on the date fixed for such determination and the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company Company, but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of fractional shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2b) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6f) of this Section) of the Common Stock on the date dated fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price Conversion Price in effect at the opening of business on the day Trading Day following the date fixed for such determination shall be reduced by multiplying such conversion price Conversion Price by a fraction fraction, the numerator of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day Trading Day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2b), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company Company, but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of fractional shares of Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day Trading Day following the day upon which such subdivision becomes effective shall be proportionately reduced, reduced and, conversely, in the case that outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock Indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2b) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the retained earnings of the Company and any dividend or distribution referred to in paragraph (1a) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction fraction, the numerator of which the numerator shall be the current market price per share (determined as provided in paragraph (6f) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness Indebtedness so distributed applicable to one share of Common Stock and the denominator of which shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5e) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger merger, to which Section 14.11 17.11 applies) shall be deemed to involve (ai) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4d) of this Section), ) and (bii) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3c) of this Section).
(6f) For the purpose of any computation under paragraphs (2b) and (4d) of this Section, the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days Trading Days before, and ending not later than, the earlier of the day in question and the day before the “"ex” " date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the last reported last sale sales price (regular way or, in case that no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the Nasdaq National Market or, if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or quoted on the Nasdaq National Market, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors Company for that purpose purpose. 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 Common Stock trades regular way on such exchange or in such market without the absence of any right to receive such quotations, as determined by the Board of Directors in good faithissuance or distribution.
(7g) The Company may make such reductions in the conversion priceConversion Price, in addition to those required by paragraphs (1a), (2b), (3c) and (4d) of this Section, as it considers to be advisable in order to avoid or diminish that any event treated for federal income tax to any holders of shares of Common Stock resulting from any purposes as a dividend or distribution of stock or issuance of stock rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall not be final and conclusive.
(8) The Company may make such decreases taxable to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposesrecipients.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common StockShares, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock Shares outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock Shares 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 Common StockShares. The Company will not pay any dividend or make any distribution on shares of Common Stock Shares held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock Shares entitling them to subscribe for or purchase shares of Common Stock Shares at a price per share less than the current market price per share Common Share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders shareholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock Shares outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that Shares which the aggregate of the offering price of the total number of shares of Common Stock Shares so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock Shares outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock Shares so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock Shares 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 Common StockShares. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock Shares held in the treasury of the Company.
(3) In case outstanding shares of Common Stock Shares shall be subdivided into a greater number of shares of Common StockShares, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock Shares shall each be combined into a smaller number of shares of Common StockShares, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock Shares evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the earned surplus of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders shareholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share Common Share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock Share and the denominator shall all be such current market price per share of the Common StockShare, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock Shares into securities other than Common Stock Shares (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock Shares to all holders of Common Stock Shares (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders shareholders entitled to receive such distribution” and the “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock Shares outstanding immediately prior to such reclassification into the number of shares of Common Stock Shares outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and such “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock Share on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e .i.e., Business Days on which the Common Stock is Shares are traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “‘ex” ’ date”, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades Shares trade regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Shares are not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then Shares are listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, on the Nasdaq Stock Market or, if the Common Shares are not listed or admitted to trading on any national securities exchange or quoted on the Nasdaq Stock Market, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithpurpose.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock Shares resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to in this section paragraph (7) and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment adjustments which by reason of this paragraph (9) 8) is 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 1/10,000 1/100 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture (Primus Guaranty LTD)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common com- mon Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 such certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes subdivisions become effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increaseincreases, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes become effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences evidence of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the retained earnings of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less determination, reduced by the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences evidence of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 1511 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” ") within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”, ," as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs paragraph (2) and (4) of this Section, the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing market prices for the five ten consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not less than ten nor more than 20 trading days before, and ending not later than, the earlier of 80 Business Days before the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distributionquestion. The closing price for each day shall be the last reported last sale sales price (regular way on the composite tape or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked pricesprices regular way, in either case on the NASDAQ National Market System ("NASDAQ") or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for NASDAQ, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange NASDAQ member firm selected from time to time by the Board of Directors Company for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithpurpose.
(7) The Company may make such reductions in the conversion priceConversion Price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish that any event treated for Federal income tax to any holders of shares of Common Stock resulting from any purposes as a dividend or distribution of stock or issuance of stock rights or warrants shall not be taxable to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusiverecipients.
(8) The Company may make such decreases Trustee has no duty to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No determine when an adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall Fifteen should be made, how it should be made or what it should be. The Trustee has no duty to determine whether a supplemental indenture under Section 1511 need be entered into or whether any provisions of any supplemental indenture are correct. The Trustee shall not be accountable for and makes no representation as to the nearest cent validity or to the nearest 1/10,000 value of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer securities or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock assets issued upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under The Trustee shall not be responsible for the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled 's failure to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basiscomply with this Article Fifteen.
Appears in 1 contract
Sources: Indenture (Atmos Energy Corp)
Adjustment of Conversion Price. (1) In case at any time after the date of the issuance of the applicable Securities, the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case at any time after the date of the issuance of the applicable Securities, the Company shall issue rights, options rights or warrants to all holders of its Common Stock (not being available on an equivalent basis to Holders of the Securities upon conversion) entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) 8) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case at any time after the date of the issuance of the applicable Securities, outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case at any time after the date of the issuance of the applicable Securities, the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the retained earnings of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) 8) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If.
(5) In case at any time after the date of the issuance of the applicable Securities, after the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any such cash that is distributed upon a merger or consolidation to which Section 1411 applies or as part of a distribution referred to in paragraph (4) of this Section) in an aggregate amount that, combined together with (I) the aggregate amount of any other distributions to all holders of its Common Stock made exclusively in cash within the 12 months preceding the date fixed for determination, any of payment of such distribution is not and in fact made, respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the conversion price shall be immediately readjusted effective as aggregate of any cash plus the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determineddetermined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of any non-cash consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the evidences Common Stock concluded within the 12 months preceding the date of indebtednesspayment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made, shares exceeds 15% of any class the product of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date, then, and in lieu each such case, immediately after the close of business on such date for determination, 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 date fixed for determination of the foregoing adjustment, adequate provision stockholders entitled to receive such distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined amount over such 15% and (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination.
(6) In case at any time after the date of the issuance of the applicable Securities, a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the 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 expiration of such tender offer, of any non-cash consideration payable in respect of any other tender offer, by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made, exceeds 15% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the conversion price shall be adjusted so that each Holder the same shall equal the price determined by multiplying the conversion price immediately prior to close of business on the date of the Expiration Time by a Security fraction (i) the numerator of which shall have be equal to (A) the right to receive upon conversion product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time and (II) the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time less (B) the amount of such evidences cash plus the fair market value (determined as aforesaid) of indebtednessthe aggregate non-cash consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time and (B) the number of shares of Common Stock outstanding (including any class tendered shares) as of capital stock or other property the Expiration Time less the number of all shares accepted for payment pursuant to such Holder would have received had tender offer (the shares deemed so accepted up to any such Holder converted each Security on such datemaximum, being referred to as the "Purchased Shares").
(57) The reclassification of Common Stock into securities including securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 1412 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) 8) For the purpose of any computation under paragraphs (2), (4), (5) and (46) of this Section, the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days Trading Days before, and ending not later than, than the earlier of the day in question and the day before the “"ex” " date with respect request to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the last reported last sale sales price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the National Association of Securities Dealers Automated Quotations National Market System or, if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or quoted on such National Market System, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors Company for that purpose purpose. 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 Common Stock trades regular way on such exchange or in such market without the absence of any right to receive such quotations, as determined by the Board of Directors in good faithissuance or distribution.
(79) No adjustment in the conversion price shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least 1% in such price; provided, however, that any adjustments which by reason of this paragraph -------- ------- (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this paragraph (9) shall be made to the nearest cent.
(10) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to in this section paragraph (10) and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture Agreement (Brookdale Living Communities Inc)
Adjustment of Conversion Price. (1a) In case the Company shall pay make a dividend or other distribution on the Common Stock exclusively in Common Stock or shall make a dividend or other distribution on any other class of capital stock of the Company in which dividend or distribution includes Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes purpose of this paragraph (1a), the number of shares of 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 Common StockCompany. The Company will shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2b) In Subject to the last sentence of paragraph (g) of this Section, in case the Company shall issue rights, options rights or warrants to all entitling the holders of its Common Stock entitling them thereof to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share Current Market Price (determined as provided in paragraph (6h) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan)issuance, the conversion price in effect at the opening of business on the day following the date fixed for of such determination issuance shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for of such determination issuance plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase as a result of the exercise or conversion of such rights or warrants would purchase at such current market price Current Market Price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for of such determination issuance plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for of such determination. Ifissuance; provided, after any however, that the Company may issue to its officers, business associates, employees, directors and consultants such date fixed for rights or warrants to the extent such determination, any such rights, options rights or warrants are not in fact issued, exercisable or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as convertible for more than two percent (2%) of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may beCommon Stock on a fully diluted basis. For the purposes of this paragraph (2b), the number of shares of 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 Common StockCompany. The Company will shall not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In Subject to the last sentence of this paragraph (d) and the last sentence of paragraph (g) of this Section, in case the Company shall, by dividend or otherwise, distribute to all holders of its the Common Stock evidences of its indebtednessindebtedness of the Company or of any Subsidiary, shares of any class of the Company's capital stock or rightsstock, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) cash or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2b) of this Section, (ii) excluding any dividend or distribution paid exclusively in cash, (iii) cash and excluding any dividend or distribution referred to in paragraph (1a) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), the conversion price shall be adjusted so that the same shall equal the price determined reduced by multiplying the conversion price in effect immediately prior to the close of business on the date fixed for the determination of stockholders shareholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share Current Market Price (determined as provided in paragraph (6h) of this Section) of the Common Stock on the such date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the TrusteeResolution) on such date of the portion of the assetsevidences of indebtedness, shares or evidences of indebtedness so capital stock, cash and other assets to be distributed applicable to one share of Common Stock and the denominator shall be such current Current Market Price, such reduction to become effective immediately prior to the opening of business on the day following such date. If the Board of Directors determines the fair market price per share value of any distribution for purposes of this paragraph (d) by reference to the actual or when-issued trading market for any securities comprising part or all of such distribution, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price pursuant to paragraph (h) of this Section, to the extent possible. For purposes of this paragraph (d), any dividend or distribution that includes shares of Common Stock, rights or warrants to subscribe for or purchase shares of Common Stock or securities convertible into or exchangeable for shares of Common Stock shall be deemed to be (x) a dividend or distribution of the evidences of indebtedness, cash, assets or shares of capital stock other than such shares of Common Stock, such rights or warrants or such convertible or exchangeable securities (making any conversion price reduction required by this paragraph (d)) immediately followed by (y) in the case of such shares of Common Stock or such rights or warrants, a dividend or distribution thereof (making any further conversion price reduction required by paragraph (a) and (b) of this Section, except any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of paragraph (a) of this Section), or (z) in the case of such convertible or exchangeable securities, a dividend or distribution of the number of shares of Common Stock as would then be issuable upon the conversion or exchange thereof, whether or not the conversion or exchange of such securities is subject to any conditions (making any further conversion price reduction required by paragraph (a) of this Section, except the shares deemed to constitute such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of paragraph (a) of this Section).
(e) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of the Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (d) of this Section or in connection with a transaction to which Section 1311 applies) in an aggregate amount that, together with (i) the aggregate amount of any other distributions to all holders of the Common Stock made exclusively in cash within the 12 months preceding the date fixed for the determination of shareholders entitled to such distribution and in respect of which no conversion price adjustment pursuant to paragraph (d) or this paragraph (e) has been made previously and (ii) the 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 the 12 months preceding such date of determination and in respect of which no conversion price adjustment pursuant to paragraph (f) of this Section has been made previously, exceeds 12.5% of the product of the Current Market Price (determined as provided in paragraph (h) of this Section) on such date of determination times the number of shares of Common Stock outstanding on such date, the conversion price shall be reduced by multiplying the conversion price in effect immediately prior to the close of business on such date of determination by a fraction of which the numerator shall be the Current Market Price (determined as provided in paragraph (h) of this Section) on such date less the amount of cash to be distributed at such time applicable to one share of Common Stock and the denominator shall be such Current Market Price, such reduction to become effective immediately prior to the opening of business on the day after such date.
(f) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall be consummated and such tender offer shall involve an aggregate consideration having a fair market value (as determined by the Board of Directors, 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 shall have been amended) that, together with (i) the 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 Expiration Time of the other consideration paid in respect of any other tender offer by the Company or a Subsidiary for all or any portion of the Common Stock consummated within the 12 months preceding the Expiration Time and in respect of which no conversion price adjustment pursuant to this paragraph (f) has been made previously and (ii) the aggregate amount of any distributions to all holders of the Common Stock made exclusively in cash within the 12 months preceding the Expiration Time and in respect of which no conversion price adjustment pursuant to paragraphs (d) or (e) of this Section has been made previously, exceeds 12.5% of the product of the Current Market Price (determined as provided in paragraph (h) of this Section) immediately prior to the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) at the Expiration Time, the conversion price shall be reduced by multiplying the conversion price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be (x) the product of the Current Market Price (determined as provided in paragraph (h) of this Section) immediately prior to the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) at the Expiration Time minus (y) the fair market value (determined as aforesaid) of the aggregate consideration payable to shareholders upon consummation of such tender offer and the denominator shall be the product of (A) such Current Market Price times (B) such number of outstanding shares at the Expiration Time minus the number of shares accepted for payment in such tender offer (the "Purchased Shares"), such reduction to become effective immediately prior to the opening of business on the day following the date fixed for Expiration Time; provided, that if the determination number of stockholders entitled to receive Purchased Shares or the aggregate consideration payable therefor have not been finally determined by such distribution. Ifopening of business, the adjustment required by this paragraph (f) shall, pending such final determination, be made based upon the preliminarily announced results of such tender offer, and, after any such date fixed for determination, any such distribution is not in fact final determination shall have been made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those adjustment required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.paragraph
Appears in 1 contract
Sources: Indenture (Telegroup Inc)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company its Common Stock exclusively in Common Stock, the conversion price in effect at the opening of business on the day next following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day next following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall pay or make a dividend or other distribution on its Common Stock consisting exclusively of, or shall otherwise issue rights, options or warrants to all holders of its Common Stock Stock, rights, warrants or options entitling them the holders thereof to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (67) of this SectionSection 13.04) of the Common Stock on the date fixed for the determination of stockholders shareholders entitled to receive such rights, options warrants or warrants (other than pursuant to a dividend reinvestment plan)options, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will shall not issue any rights, warrants or options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In Subject to the last sentence of this paragraph (4), in case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock stock, securities, cash or rights, options or warrants to subscribe for or purchase shares of any class of capital stock property (other than excluding any rights, warrants or options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SectionSection 13.04, (ii) any dividend or distribution paid exclusively in cash, (iii) cash and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies13.04), the conversion price shall be adjusted reduced so that the same shall equal the price determined by multiplying the conversion price in effect immediately prior to the close effectiveness of business on the date fixed for the determination of stockholders entitled to receive such distribution conversion price reduction contemplated by this paragraph (4) by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (67) of this SectionSection 13.04) of the Common Stock on the date fixed for of such determination effectiveness less the then fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with and shall, in the Trustee) case of securities being distributed for which prior thereto there is an actual or when issued trading market, be no less than the value determined by reference to the average of the closing prices in such market over the period specified in the succeeding sentence), on the date of such effectiveness, of the portion of the assetsevidences of indebtedness, shares or evidences of indebtedness capital stock, securities, cash and property so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such reduction to become effective immediately prior to the opening of business on the day next following the later of (a) the date fixed for the payment of such distribution and (b) the date 20 days after the notice relating to such distribution is given pursuant to Section 13.06(a) (such later date of (a) and (b) being referred to as the "Reference Date"). If the Board of Directors determines the fair market value of any distribution for purposes of this paragraph (4) 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 pursuant to paragraph (7) of this Section. For purposes of this paragraph (4), any dividend or distribution that includes shares of Common Stock or rights, warrants or options to subscribe for or purchase shares of Common Stock shall be deemed instead to be (a) a dividend or distribution of the evidences of indebtedness, cash, property, shares of capital stock or securities other than such shares of Common Stock or such rights, warrants or options (making any conversion price reduction required by this paragraph (4)) immediately followed by (b) a dividend or distribution of such shares of Common Stock or such rights (making any further conversion price reduction required by paragraph (1) or (2) of this Section 13.04, except (i) the Reference Date of such dividend or distribution as defined in this paragraph (4) shall be substituted as "the date fixed for the determination of shareholders entitled to receive such dividend or other distributions", "the date fixed for the determination of shareholders entitled to receive such rights, warrants or options" and "the date fixed for such determination" within the meaning of paragraphs (1) and (2) of this Section 13.04 and (ii) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of paragraph (1) of this Section 13.04).
(5) In case the Company shall, by dividend or otherwise, make a distribution to all holders of its Common Stock exclusively in cash in an aggregate amount that, together with (i) the aggregate amount of any other distributions to all holders of its Common Stock made exclusively in cash within the 12 months preceding the date of payment of such distribution and in respect of which no conversion price adjustment pursuant to this paragraph (5) has been made and (ii) the aggregate of any cash plus the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of the tender or exchange offer referred to below, of consideration payable in respect of any tender or exchange offer by the Company or a Subsidiary for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no conversion price adjustment pursuant to paragraph (6) of this Section 13.04 has been made, exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (7) of this Section 13.04) of the Common Stock on the date fixed for shareholders entitled to receive such distribution times the number of shares of Common Stock outstanding on such date, 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 paragraph (5) by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (7) of this Section 13.04) of the Common Stock on the date of such effectiveness less the amount of cash so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such reduction to become effective immediately prior to the opening of business on the later of (a) the day following the date fixed for the payment of such distribution and (b) the date 20 days after the notice relating to such distribution is given pursuant to Section 13.06(a).
(6) In case a successful tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall involve an aggregate consideration 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 may be amended) that, together with (i) the aggregate of the cash plus the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of the other tender or exchange offer referred to below, of consideration payable in respect of any other tender or exchange offer by the Company or a Subsidiary for all or any portion of the Common Stock concluded within the preceding 12 months and in respect of which no conversion price adjustment pursuant to this paragraph (6) has been made and (ii) the aggregate amount of any distributions to all holders of the Common Stock made exclusively in cash within the preceding 12 months and in respect of which no conversion price adjustment pursuant to paragraph (5) of this Section 13.04 has been made, exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (7) of this Section 13.04) 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 (but not increased) 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 (i) the product of the current market price per share (determined as provided in paragraph (7) of this Section 13.04) of the Common Stock at the Expiration Time times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time minus (ii) the fair market value (determined as aforesaid) of the aggregate consideration payable to shareholders 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 (i) such current market price per share at the Expiration Time times (ii) such number of outstanding shares at 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 date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such dateExpiration Time.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(67) For the purpose of any computation under this paragraph and paragraphs (2), (4) and (45) of this SectionSection 13.04, the current market price per share of Common Stock on any day date in question shall be deemed to be the average of the daily closing prices Closing Prices for the five 5 consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days Trading Days before, and ending not later than, the earlier of date in question; provided, however, that (i) if the day in question and the day before the “"ex” " date with respect to (as hereinafter defined) for any event (other than the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases requires an adjustment to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition price pursuant to those required by paragraphs paragraph (1), (2), (3), (4), (5) or (6) above ("Other Event") occurs on or after the 20th Trading Day prior to the date in question and prior to the "ex" date for the issuance or distribution requiring such computation (the "Current Event"), the Closing Price for each Trading Day prior to the "ex" date for such Other Event shall be adjusted by multiplying such Closing Price by the same 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 Other Event occurs after the "ex" date for the Current Event and on or prior to the date in question, the Closing Price for each Trading Day on and after the "ex" date for such Other Event shall be adjusted by multiplying such Closing 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, (iii) if the "ex" date for any Other Event occurs on the "ex" date for the Current Event, one of those events shall be deemed for purposes of clauses (i) and (ii) of this proviso to have an "ex" date occurring prior to the "ex" date for the other event, and (iv) if the "ex" date for the Current Event is on or prior to the date in question, after taking into account any adjustment required pursuant to clause (ii) of this proviso, the Closing Price for each Trading Day on or after such "ex" date shall be adjusted by adding thereto the amount of any cash and the fair market value on the date in question (as determined in good faith by the Board of Directors in a manner consistent with any determination of such value for purposes of paragraph (4) or (5) of this section as it considers Section 13.04, whose determination shall be conclusive and described in a Board Resolution) of the portion of the rights, warrants, options, evidences of indebtedness, shares of capital stock, securities, cash or property being distributed applicable to be advisable in order to avoid or diminish one share of Common Stock. For the purpose of any income tax to any holders computation under paragraph (6) of shares this Section 13.04, the current market price per share of Common Stock resulting from on any dividend date in question shall be deemed to be the average of the daily Closing Prices for the 5 consecutive Trading Days selected by the Company commencing on or distribution after the latest (the "Commencement Date") of stock (i) the date 20 Trading Days before the date in question, (ii) the date of commencement of the tender or issuance exchange offer requiring such computation and (iii) the date of rights the last amendment, if any, of such tender or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment exchange offer involving a change in the conversion price shall be required unless maximum number of shares for which tenders are sought or a change in the consideration offered, and ending not later than the date of the Expiration Time of such adjustment would require an increase tender or decrease exchange offer (or, if such Expiration Time occurs before the close of at least one percent in trading on a Trading Day, not later than the Trading Day immediately preceding the date of such conversion priceExpiration Time); provided, however, that any adjustment which by reason of this paragraph (9) is 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 if the nearest cent or to the nearest 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount "ex" date for any period of time of at least twenty Other Event (20) days, other than the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer tender or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.exc
Appears in 1 contract
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company its Common Stock exclusively in Common Stock, the conversion price in effect at the opening of business on the day next following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day next following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall pay or make a dividend or other distribution on its Common Stock consisting exclusively of, or shall otherwise issue rights, options or warrants to all holders of its Common Stock Stock, rights, warrants or options entitling them the holders thereof to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (67) of this SectionSection 13.04) of the Common Stock on the date fixed for the determination of stockholders shareholders entitled to receive such rights, options warrants or warrants (other than pursuant to a dividend reinvestment plan)options, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will shall not issue any rights, warrants or options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In Subject to the last sentence of this paragraph (4), in case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock stock, securities, cash or rights, options or warrants to subscribe for or purchase shares of any class of capital stock property (other than excluding any rights, warrants or options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SectionSection 13.04, (ii) any dividend or distribution paid exclusively in cash, (iii) cash and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies13.04), the conversion price shall be adjusted reduced so that the same shall equal the price determined by multiplying the conversion price in effect immediately prior to the close effectiveness of business on the date fixed for the determination of stockholders entitled to receive such distribution conversion price reduction contemplated by this paragraph (4) by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (67) of this SectionSection 13.04) of the Common Stock on the date fixed for of such determination effectiveness less the then fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with and shall, in the Trustee) case of securities being distributed for which prior thereto there is an actual or when issued trading market, be no less than the value determined by reference to the average of the closing prices in such market over the period specified in the succeeding sentence), 76 70 on the date of such effectiveness, of the portion of the assetsevidences of indebtedness, shares or evidences of indebtedness capital stock, securities, cash and property so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such reduction to become effective immediately prior to the opening of business on the day next following the later of (a) the date fixed for the payment of such distribution and (b) the date 20 days after the notice relating to such distribution is given pursuant to Section 13.06(a) (such later date of (a) and (b) being referred to as the "Reference Date"). If the Board of Directors determines the fair market value of any distribution for purposes of this paragraph (4) 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 pursuant to paragraph (7) of this Section. For purposes of this paragraph (4), any dividend or distribution that includes shares of Common Stock or rights, warrants or options to subscribe for or purchase shares of Common Stock shall be deemed instead to be (a) a dividend or distribution of the evidences of indebtedness, cash, property, shares of capital stock or securities other than such shares of Common Stock or such rights, warrants or options (making any conversion price reduction required by this paragraph (4)) immediately followed by (b) a dividend or distribution of such shares of Common Stock or such rights (making any further conversion price reduction required by paragraph (1) or (2) of this Section 13.04, except (i) the Reference Date of such dividend or distribution as defined in this paragraph (4) shall be substituted as "the date fixed for the determination of shareholders entitled to receive such dividend or other distributions", "the date fixed for the determination of shareholders entitled to receive such rights, warrants or options" and "the date fixed for such determination" within the meaning of paragraphs (1) and (2) of this Section 13.04 and (ii) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of paragraph (1) of this Section 13.04).
(5) In case the Company shall, by dividend or otherwise, make a distribution to all holders of its Common Stock exclusively in cash in an aggregate amount that, together with (i) the aggregate amount of any other distributions to all holders of its Common Stock made exclusively in cash within the 12 months preceding the date of payment of such distribution and in respect of which no conversion price adjustment pursuant to this paragraph (5) has been made and (ii) the aggregate of any cash plus the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of the tender or exchange offer referred to below, of consideration payable in respect of any tender or exchange offer by the Company or a Subsidiary for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no conversion price adjustment pursuant to paragraph (6) of this Section 13.04 has been made, exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (7) of this Section 13.04) of the Common Stock on the date fixed for shareholders entitled to receive such distribution times the number of shares of Common Stock outstanding on such date, 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 paragraph (5) by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (7) of this Section 13.04) of the Common Stock on the date of such effectiveness less the amount of cash so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such reduction to become effective immediately prior to the opening of business on the later of (a) the day following the date fixed for the payment of such distribution and (b) the date 20 days after the notice relating to such distribution is given pursuant to Section 13.06(a).
(6) In case a successful tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall involve an aggregate consideration 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 may be amended) that, together with (i) the aggregate of the cash plus the fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of the other tender or exchange offer referred to below, of consideration payable in respect of any other tender or exchange offer by the Company or a Subsidiary for all or any portion of the Common Stock concluded within the preceding 12 months and in respect of which no conversion price adjustment pursuant to this paragraph (6) has been made and (ii) the aggregate amount of any distributions to all holders of the Common Stock made exclusively in cash within the preceding 12 months and in respect of which no conversion price adjustment pursuant to paragraph (5) of this Section 13.04 has been made, exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (7) of this Section 13.04) 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 (but not increased) 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 (i) the product of the current market price per share (determined as provided in paragraph (7) of this Section 13.04) of the Common Stock at the Expiration Time times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time minus (ii) the fair market value (determined as aforesaid) of the aggregate consideration payable to shareholders 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 (i) such current market price per share at the Expiration Time times (ii) such number of outstanding shares at 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 date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such dateExpiration Time.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(67) For the purpose of any computation under this paragraph and paragraphs (2), (4) and (45) of this SectionSection 13.04, the current market price per share of Common Stock on any day date in question shall be deemed to be the average of the daily closing prices Closing Prices for the five 5 consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days Trading Days before, and ending not later than, the earlier of date in question; provided, however, that (i) if the day in question and the day before the “"ex” " date with respect to (as hereinafter defined) for any event (other than the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases requires an adjustment to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition price pursuant to those required by paragraphs paragraph (1), (2), (3), (4), (5) or (6) above ("Other Event") occurs on or after the 20th Trading Day prior to the date in question and prior to the "ex" date for the issuance or distribution requiring such computation (the "Current Event"), the Closing Price for each Trading Day prior to the "ex" date for such Other Event shall be adjusted by multiplying such Closing Price by the same 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 Other Event occurs after the "ex" date for the Current Event and on or prior to the date in question, the Closing Price for each Trading Day on and after the "ex" date for such Other Event shall be adjusted by multiplying such Closing 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, (iii) if the "ex" date for any Other Event occurs on the "ex" date for the Current Event, one of those events shall be deemed for purposes of clauses (i) and (ii) of this proviso to have an "ex" date occurring prior to the "ex" date for the other event, and (iv) if the "ex" date for the Current Event is on or prior to the date in question, after taking into account any adjustment required pursuant to clause (ii) of this proviso, the Closing Price for each Trading Day on or after such "ex" date shall be adjusted by adding thereto the amount of any cash and the fair market value on the date in question (as determined in good faith by the Board of Directors in a manner consistent with any determination of such value for purposes of paragraph (4) or (5) of this section as it considers Section 13.04, whose determination shall be conclusive and described in a Board Resolution) of the portion of the rights, warrants, options, evidences of indebtedness, shares of capital stock, securities, cash or property being distributed applicable to be advisable in order to avoid or diminish one share of Common Stock. For the purpose of any income tax to any holders computation under paragraph (6) of shares this Section 13.04, the current market price per share of Common Stock resulting from on any dividend date in question shall be deemed to be the average of the daily Closing Prices for the 5 consecutive Trading Days selected by the Company commencing on or distribution after the latest (the "Commencement Date") of stock (i) the date 20 Trading Days before the date in question, (ii) the date of commencement of the tender or issuance exchange offer requiring such computation and (iii) the date of rights the last amendment, if any, of such tender or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment exchange offer involving a change in the conversion price shall be required unless maximum number of shares for which tenders are sought or a change in the consideration offered, and ending not later than the date of the Expiration Time of such adjustment would require an increase tender or decrease exchange offer (or, if such Expiration Time occurs before the close of at least one percent in trading on a Trading Day, not later than the Trading Day immediately preceding the date of such conversion priceExpiration Time); provided, however, that any adjustment which by reason of this paragraph (9) is 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 if the nearest cent or to the nearest 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount "ex" date for any period of time of at least twenty Other Event (20) days, other than the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.tender
Appears in 1 contract
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock Capital Stock of the Company in Common Stockshares of common stock, the conversion price in 38 effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock common stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for or such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all or substantially all holders of its Common Stock shares of common stock entitling them to subscribe for or purchase shares of Common Stock common stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock shares of common stock on the date fixed for the determination of stockholders shareholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock common stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that common stock which the aggregate of the offering subscription price of the total number of shares of Common Stock common stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock common stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock common stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any In the event that all of the shares of common stock subject to such date fixed for such determination, any such rights, options rights or warrants are have not in fact issuedbeen issued when such rights or warrants expire, or are not exercised prior to the expiration thereof, then the conversion price shall promptly be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, readjusted to the conversion price that which would have been then be in effect if had the unexercised rights, options adjustment upon the issuance of such rights or warrants had never been granted made on the basis of the actual number of shares of common stock issued upon the exercise of such rights or such determination date had not been fixed, as the case may bewarrants. For the purposes of this paragraph (2), the number of shares of Common Stock 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 Common Stockcommon stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock common stock held in the treasury treasury, if any, of the Company.
(3) In case the outstanding shares of Common Stock common stock shall be subdivided into a greater number of shares of Common Stockshares, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock common stock shall each be combined into a smaller number of shares of Common Stockshares, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock shares of common stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding any (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, not prohibited by Section 4.06 hereof and (iii) any dividend or distribution referred to in paragraph (1l) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date day fixed for the determination of stockholders shareholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock shares of common stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, Directors of the Company (whose determination shall be conclusive and described in a resolution of the Board Resolution of Directors of the Company filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable allocable to one share of Common Stock common stock and the denominator shall be such current market price per share of the Common Stockshares of common stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification In case the shares of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) common stock shall be deemed to involve (a) changed into the same or a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the different number of shares of Common Stock outstanding immediately prior to such reclassification into the number any class or classes of shares of Common Stock outstanding immediately thereafter stock, whether by capital reorganization, reclassification, or otherwise (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such other than a subdivision or combination becomes effective” within the meaning of shares or a stock dividend described in paragraph (l) or paragraph (3) of this Section, or a consolidation, merger or sale of assets described in Section 11.10), then and in each such event the Holders of Securities shall have the right thereafter to convert such Securities into the kind and amount of shares of stock and other securities and property receivable upon such reorganization, reclassification or other change, by holders of the number of shares of common stock into which such Securities might have been converted immediately prior to such reorganization, reclassification or change.
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock common stock on any day date shall be deemed to be the average of the daily closing prices Closing Prices for the five 15 consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 30 and not less than 20 trading days before, and ending not later than, the earlier of the day in question and the day Business Days before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithquestion.
(7) No adjustment in the conversion price shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (7)) would require an increase or decrease of at least 1% in such price; provided, however, that any adjustments which by reason of this paragraph (7) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this paragraph (7) shall be made to the nearest cent.
(8) The Company may may, but shall not be required to, make such reductions in the conversion price, in addition to those required by paragraphs (1l), (2), (3) and (4) of this Section, as it the Company's Board of Directors considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock common stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company Company's Board of Directors shall have the power to resolve any ambiguity or correct any error in the adjustments made pursuant to this section Section 11.04 and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent for a transaction referred to in such conversion price; provided, however, that any adjustment which by reason paragraphs (1) through (5) of this paragraph (9) is not required Section if the Company, in its sole discretion, permits Holders to be made shall be carried forward participate in the transaction upon a basis and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest 1/10,000 of a share, with such notice as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would determines to be fair and adequate relative to the participation by, and notice to, holders of Common Stock. No adjustment in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained required for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights change in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares par value of Common Stock received upon conversion and the Conversion Rate, or a change in such case, will be adjusted as though such rights were being distributed stock from par value to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basisstock without par value.
Appears in 1 contract
Adjustment of Conversion Price. (1a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day Trading Day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction fraction, the numerator of which the numerator shall be the number of shares of Common Stock outstanding at the close of business the Trading Day on the date fixed for such determination and the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company Company, but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of fractional shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2b) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6f) of this Section) of the Common Stock on the date dated fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price in effect at the opening of business on the day Trading Day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction fraction, the numerator of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day Trading Day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies, 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Adjustment of Conversion Price. (1) In case at any time after the date of establishment of the Initial Conversion Price with respect to Securities of a series the Company shall pay or make a dividend or other distribution in shares of Common Stock on any class of capital stock of the Company in Common StockCompany, the conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1)paragraph, the number of shares of 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 Common StockCompany. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case at any time after the date of establishment of the Initial Conversion Price with respect to Securities of a series the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date dated fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common StockCompany. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case at any time after the date of establishment of the Initial Conversion Price with respect to Securities of a series outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case at any time after the date of establishment of the Initial Conversion Price with respect to Securities of a series the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the retained earnings of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 15.02 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing prices for the five 30 consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not less than 30 nor more than 20 trading days before, and ending not later than, the earlier of 45 Business Days before the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distributionquestion. The closing price for each day shall be the last reported last sale sales price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case, on such date as reported in composite transactions for the principal national securities exchange on which the Common Stock is then are listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the National Association of Securities Dealers Automated Quotations National Market System or, if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or quoted on such National Market System, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors Company for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithpurpose.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish that any event treated for Federal income tax to any holders of shares of Common Stock resulting from any purposes as a dividend or distribution of stock or issuance of stock rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall not be final and conclusive.
(8) The Company may make such decreases taxable to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposesrecipients.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture (Associated Banc-Corp)
Adjustment of Conversion Price. (1) In case If the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction fraction, of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and of which the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case If the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price Conversion Price by a fraction fraction, of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock 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 outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case If outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case if outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case If the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the retained earnings of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction fraction, of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less determination, reduced by the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences evidence of indebtedness 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 to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 1511 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” ") within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing market prices for the five 10 consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not less than ten nor more than 20 trading days before, and ending not later than, the earlier of 80 Business Days before the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distributionquestion. The closing price for each day shall be the last reported last sale sales price (regular way on the composite tape or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors Company for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithpurpose.
(7) The Company may make such reductions in the conversion priceConversion Price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish that any event treated for Federal income tax to any holders of shares of Common Stock resulting from any purposes as a dividend or distribution of stock or issuance of stock rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall not be final and conclusive.
(8) The Company may make such decreases taxable to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposesrecipients.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture (Remington Oil & Gas Corp)
Adjustment of Conversion Price. The Conversion Price shall be adjusted from time to time by Parent as follows:
(1a) In case the Company Parent shall hereafter pay a dividend or make a dividend or other distribution on any class of capital stock to all holders of the Company outstanding Common Stock in shares of Common Stock, the conversion Conversion Price shall be reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the day date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction fraction, the numerator of which the numerator shall be the number of shares of the Common Stock outstanding at the close of business on the date fixed for such determination determination, and the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes purpose of this paragraph (1a), the number of shares of 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 Common StockParent. The Company Parent will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of Parent. If any dividend or distribution of the Companytype described in this Section 15.5(a) is declared but not so paid or made, the Conversion Price shall again be adjusted to the Conversion Price that would then be in effect if such dividend or distribution had not been declared.
(2b) In case the Company Parent shall issue rights, options rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within forty-five (45) days after the date fixed for determination of stockholders entitled to receive such rights or warrants) to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share Current Market Price (determined as provided in paragraph (6defined below) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the day following immediately prior to the date fixed for determination of stockholders entitled to receive such determination shall be reduced by multiplying such conversion price rights or warrants by a fraction fraction, the numerator of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies, 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.plus the
Appears in 1 contract
Sources: First Supplemental Indenture (Texas Instruments Tucson Corp)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) 8) of this Section) of the Common Stock on the date dated fixed for the determination of stockholders shareholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options rights or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options rights or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders shareholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) 8) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted readjusted, effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. .
(5) In case the event Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section) in an aggregate amount that, combined together with (I) the then aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate of any cash plus the fair market value (as so determineddetermined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution and filed with the Trustee) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made (the "combined cash and tender amount") exceeds 10% of the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, 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 date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination.
(6) In case a tender offer made by the Company or any subsidiary of the Company for all or any portion of the evidences Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of indebtednessthe tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors, shares whose determination shall be conclusive and described in a Board Resolution and filed with the Trustee) that combined together with (I) the 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 and filed with the Trustee), as of the expiration of such tender offer, of consideration payable in respect of any class other tender offer by the Company or any subsidiary of capital stock the Company for all or other property so distributed is equal any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to or greater than this paragraph (6) has been made and (II) the aggregate amount of any cash distributions to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 10% of the product of the current market price per share of the Common Stock on such date, (determined as provided in lieu paragraph (8) of this Section) as of the foregoing adjustmentlast time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time, adequate provision then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the conversion price shall be made adjusted so that each Holder the same shall equal the price determined by multiplying the conversion price immediately prior to close of business on the date of the Expiration Time by a Security fraction (i) the numerator of which shall have be equal to (A) the right to receive upon conversion product of (I) the amount current market price per share of such evidences the Common Stock (determined as provided in paragraph (8) of indebtedness, this Section) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any class tendered shares) on the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of capital stock or other property which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such Holder would have received had such Holder converted each Security on such datemaximum, being referred to as the "Purchased Shares").
(57) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders shareholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4) of this Section), ) and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”, ," as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) 8) For the purpose of any computation under paragraphs (2), (4), (5) and (46) of this Section, the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days Trading Days before, and ending not later than, the earlier of the day in question and the day before the “"ex” " date (as described below) with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the last reported last sale sales price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the Nasdaq National Market, or, if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or quoted on the Nasdaq National Market, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors Company for that purpose purpose. 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 Common Stock trades regular way on such exchange or in such market without the absence of any right to receive such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid issuance or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposesdistribution.
(9) No adjustment in the conversion price shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment adjustments which by reason of this paragraph (9) is 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 1/10,000 one-hundredth of a share, as the case may be.
(10) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, 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 shall not be taxable to the recipients. To the extent permitted by applicable law, the Company from time to time may decrease reduce the conversion price by any amount for any period of time of if the period is at least twenty (20) days, the decrease being irrevocable during such period, provided days and the Board of Directors shall have made a determination that such decrease reduction would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased reduced pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer give notice of the Company stating reduction to the decreased Holders of Securities in the manner provided in Section 1.6 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 during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture (Safeco Corp)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustments, calculated by the Company, from time to time as follows:
(1a) In case the Company shall hereafter pay a dividend or make a dividend or other distribution on any class of capital stock to all holders of the Company outstanding Common Stock in shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction fraction:
(1) the numerator of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date Record Date (as defined in Section 10.04(g)) fixed for such determination and determination, and
(2) the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such . Such reduction to shall become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixedRecord Date. For the purposes purpose of this paragraph (1a), the number of shares of 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 Common StockCompany. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this Section 10.04(a) is declared but not so paid or made, the Conversion Price shall again be adjusted to the Conversion Price which would then be in effect if such dividend or distribution had not been declared.
(2b) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, and conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4c) In case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within forty-five (45) days after the date fixed for determination of stockholders entitled to receive such rights or warrants) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a conversion price per share) less than the Current Market Price (as defined in Section 10.04(g)) on the Record Date fixed for the determination of stockholders entitled to receive such rights 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:
(1) the numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date plus the number of shares which the aggregate offering price of the total number of shares so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding on the close of business on the Record Date plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustment shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such rights or warrants. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants the Conversion Price shall be readjusted to the Conversion Price which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible into Common Stock) actually delivered. In the event that such rights or warrants are not so issued, 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. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such Current Market Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration if other than cash, to be determined by the Board of Directors.
(d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of Capital Stock of the Company (other than any dividends or distributions to which Section 10.04(a) applies) or evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) cash or other property (assets, including cash or assets or securities, but excluding (i1) any rights, options rights or warrants referred to in paragraph Section 10.04(c), (2) of this Sectionany stock, securities or other property or assets (iiincluding cash) any dividend distributed in connection with a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or distribution conveyance to which Section 10.11 hereof applies and (3) dividends and distributions paid exclusively in cashcash (the securities described in foregoing clauses (1), (iii2) and (3) hereinafter in this Section 10.04(d) called the “excluded securities”), then, in each such case (unless the Company elects to reserve such securities for distribution to the Noteholders upon the conversion of the Notes so that any dividend or distribution referred such Holder converting Notes will receive upon such conversion, in addition to in the shares of Common Stock to which such Holder is entitled, the amount and kind of such securities which such Holder would have received if such Holder had converted its Notes into Common Stock immediately prior to the Record Date), subject to the second succeeding paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies10.04(d), the conversion price Conversion Price shall be adjusted so that the same shall be equal to the price determined by multiplying the conversion price Conversion Price in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled Record Date (as defined in Section 10.04(g)) with respect to receive such distribution by a fraction fraction:
(1) the numerator of which the numerator shall be the current market price per share Current Market Price (determined as provided in paragraph (6Section 10.04(g)) of this Section) of the Common Stock on the date fixed for such determination Record Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described set forth in a Board Resolution filed with the TrusteeResolution) on such Record Date of the portion of the assets, shares or evidences of indebtedness securities so distributed (other than excluded securities) applicable to one share of Common Stock and (determined on the basis of the number of shares of the Common Stock outstanding on the Record Date), and
(2) the denominator of which shall be such current market price per share of the Common Stock, such adjustment to Current Market Price. Such reduction shall become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distributionRecord Date. IfHowever, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event that the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property securities so distributed (other than excluded securities) applicable to one share of Common Stock is equal to or greater than the current market price per share of Current Market Price on the Common Stock on such dateRecord Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion of a Note (or any portion thereof) the amount of such evidences of indebtedness, shares of any class of capital stock or securities so distributed (other property than excluded securities) such Holder would have received had such Holder converted each Security on such date.
Note (5or portion thereof) The reclassification immediately prior to 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 Common Stock into Directors determines the fair market value of any distribution for purposes of this Section 10.04(d) by reference to the actual or when issued trading market for any securities other than Common Stock comprising all or part of such distribution (other than any reclassification upon excluded securities), it must in doing so consider the prices in such market over the same period (the “Reference Period”) used in computing the Current Market Price pursuant to Section 10.04(g) to the extent possible, unless the Board of Directors in a consolidation Board Resolution determines in good faith that determining the fair market value during the Reference Period would not be in the best interest of the Holder. Rights or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase 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 be deemed not to have been distributed for purposes of this Section 10.04(d) (and no adjustment to the effective date Conversion Price under this Section 10.04(d) will be required) until the occurrence of the earliest Trigger Event. If such reclassification right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, evidences of indebtedness or other assets or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and Record Date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder 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 resulted in an adjustment to the Conversion Price under this Section 10.04(d):
(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 of Common Stock with respect to such rights or warrant (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 such rights or warrants all of which shall have expired or been terminated without exercise, the Conversion Price shall be readjusted as if such rights and warrants had never been issued. No adjustment of the Conversion Price shall be made pursuant to this Section 10.04(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to holders of Notes upon conversion by such holders of Notes to Common Stock. For purposes of this Section 10.04(d) and Sections 10.04(a), 10.04(b) and 10.04(c), any dividend or distribution to which this Section 10.04(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which Section 10.04(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 10.04(c) applies (or any combination thereof), shall be deemed instead to be:
(1) a dividend or distribution of the evidences of indebtedness, assets, shares of Capital Stock, rights or warrants other than such shares of Common Stock, such subdivision or combination or such rights or warrants to which Sections 10.04(a), 10.04(b) and 10.04(c) apply, respectively (and any Conversion Price reduction required by this Section 10.04(d) with respect to such dividend or distribution shall then be made), immediately followed by
(2) a dividend or distribution of such shares of Common Stock, such subdivision or combination or such rights or warrants (and any further Conversion Price reduction required by Sections 10.04(a), 10.04(b) and 10.04(c) with respect to such dividend or distribution shall then be made), except:
(A) the Record Date of such dividend or distribution shall be substituted as (x) “the date fixed for the determination of stockholders entitled to receive such dividend or other distribution”, “Record Date fixed for such determinations” and “Record Date” within the meaning of Section 10.04(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of Section 10.04(b), and (z) as “the date fixed for the determination of stockholders entitled to receive such rights or warrants”, “the Record Date fixed for the determination of the stockholders entitled to receive such rights or warrants” and such “Record Date” within the meaning of Section 10.04(c), and
(B) any shares of Common Stock included in such dividend or distribution shall not be deemed “outstanding at the close of business on the date fixed for such determination” within the meaning of paragraph Section 10.04(a) and any reduction or increase in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distribution.
(4e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 10.11 hereof applies or as part of a distribution referred to in Section 10.04(d) hereof), in an aggregate amount that, combined together with: (1) the aggregate amount of any other such distributions to all holders of Common Stock made exclusively in cash within the 12 months preceding the date of payment of such distribution, and in respect of which no adjustment pursuant to this Section)Section 10.04(e) has been made, and (b2) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and set forth in a subdivision Board Resolution) of other consideration payable in respect of any tender offer by the Company or combinationany of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of such distribution, and in respect of which no adjustment pursuant to Section 10.04(f) hereof has been made, exceeds 7% of the product of the Current Market Price (determined as provided in Section 10.04(g)) on the case may be, of Record Date with respect to such distribution times the number of shares of Common Stock outstanding on such date, then and in each such case, immediately after the close of business on such date, 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 close of business on such reclassification into Record Date by a fraction:
(i) the numerator of which shall be equal to the Current Market Price on the Record Date less an amount equal to the quotient of (x) the excess of such combined amount over such 7% and (y) the number of shares of Common Stock outstanding immediately thereafter on the Record Date, and
(and ii) the effective date denominator of such reclassification which shall be deemed equal to be “the day upon which Current Market Price on such subdivision becomes effective” or “date. However, in the day upon which such combination becomes effective”, event that the then fair market value (as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3so determined) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average portion of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.sec
Appears in 1 contract
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the earned surplus of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 15.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (( i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date”, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the Nasdaq Stock Market or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or quoted on the New York Stock Exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Nasdaq Stock Exchange Market member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithpurpose.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section paragraph (7) and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) 8) is 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 1/10,000 1/100 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture (Neutron Marine Corp.)
Adjustment of Conversion Price. The conversion price per share of Common Stock as stated in paragraph 6 of the Securities (1the “Conversion Price”) In case shall be adjusted from time to time by the Company shall pay or make as follows:
(a) If the Company issues solely shares of Common Stock as a dividend or other distribution on any class of capital stock all or substantially all of the shares of Common Stock, or if the Company in subdivides or combines the outstanding shares of Common Stock, the conversion price applicable Conversion Price will be adjusted based on the following formula: where CP0 = the Conversion Price in effect at immediately prior to the opening open of business on the day following the date fixed Ex-Dividend Date for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying distribution, or immediately prior to the open of business on the effective date of such conversion price by a fraction subdivision or combination of which Common Stock, as the numerator shall be case may be; CP = the Conversion Price in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after the open of business on the effective date of such subdivision or combination of Common Stock, as the case may be; OS0 = the number of shares of Common Stock outstanding at immediately prior to the close open of business on the date fixed Ex-Dividend Date for such determination and dividend or distribution, or immediately prior to the denominator shall be open of business on the sum effective date of such subdivision or combination of Common Stock, as the case may be; and OS = the number of shares and the total number of shares constituting Common Stock outstanding immediately after such dividend or other distribution, or immediately after the effective date of such reduction to subdivision or combination of Common Stock, as the case may be. Such adjustment shall become effective immediately after the opening of business on the day following the date fixed Ex-Dividend Date for such determinationdividend or distribution, or the effective date for such subdivision or combination of Common Stock. If, after any such date fixed for determination, If any dividend or distribution of the type described in this Section 6.06(a) is declared but not in fact paidso paid or made, or the outstanding shares of Common Stock are not split or combined, as the case may be, the conversion price Conversion Price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to or subdivide or combine the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which Conversion Price that would then be in effect if such dividend, distribution, subdivision or combination becomes effectiveof Common Stock had not been declared or announced.
(4b) In case If the Company shall, by dividend distributes to all or otherwise, distribute to substantially all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants entitling them for a period of not more than 60 calendar days from the record date for such distribution to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of the Common Stock without any action required by (or securities convertible into Common Stock), at a price per share (or a conversion price per share) less than the Company or any other Person) or other property (including cash or assets or securitiesaverage of the Closing Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesincluding, the conversion price Trading Day immediately preceding the Ex-Dividend Date for such distribution, the Conversion Price shall be adjusted so that decreased based on the same shall equal following formula: where CP0 = the price determined by multiplying the conversion price Conversion Price in effect immediately prior to the close open of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed Ex-Dividend Date for such determination less distribution; CP = the then fair market value (as determined by Conversion Price in effect immediately after the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening open of business on the day following the date fixed Ex-Dividend Date for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of ; OS0 = the number of shares of the Common Stock that are outstanding immediately prior to such reclassification into the number open of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way business on the applicable exchange or in the applicable market without the right to receive Ex-Dividend Date for such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.;
Appears in 1 contract
Adjustment of Conversion Price. The conversion price shall be subject to adjustment from time to time as follows:
(1a) In case the Company shall pay or make a dividend or other distribution on any class of its capital stock in shares of the Company in its Common Stock, then the conversion price in effect at the opening of business on the day following the record date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock issued and outstanding at the close of business on the such record date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such . Such reduction to shall become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Companyrecord date.
(2b) In case the Company shall issue rights, options or warrants to all holders of its outstanding shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the record date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan)warrants, then the conversion price in effect at the opening of business on the day following the such record date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the such record date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the such record date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such . Such reduction to shall become effective immediately after the opening of business on the day following such record date. Notwithstanding the date fixed for such determination. Ifforegoing, after any such date fixed for such determination, any such in case the Company shall issue rights, options or warrants (“Stockholder Rights”) to all holders of its Common Stock entitling the holders thereof to subscribe for or purchase shares of Common Stock, which rights or warrants (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable and (iii) are also issued in fact issuedrespect of future issuances of Common Stock, in each case until the occurrence of a specified event or events, such Stockholder Rights shall for purposes of this Section 12.4 not be deemed issued or distributed until the occurrence of the earliest of such specified events and the conversion price shall not be reduced until the occurrence of such earliest specified event. If the conversion price is reduced pursuant to this paragraph (b) as a result of any rights, warrants or options that are issued by the Company and if at the end of the period during which such warrants, options, or rights are exercisable, not exercised prior to the expiration thereofall such warrants, options or rights shall have been exercised, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not readjusted to issue any such rights, options or warrants, to the conversion price that what it would have been in effect if had the unexercised rights, options or warrants had never above fraction been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), computed based on the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable actually issued in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rightssuch warrants, options or warrants in respect of shares of Common Stock held in rights, as the treasury of the Companycase may be.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, then the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, converselyreduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the day upon which such subdivision becomes effective before giving effect to such subdivision and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the day such subdivision becomes effective after giving effect to such subdivision. Conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, then the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, increased by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the day upon which such combination becomes effective before giving effect to such combination and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the day such combination becomes effective after giving effect to such combination. Such reduction or increase, as the case may be, to shall become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rightsan issuance, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph paragraphs (1a) and (b) of this Section and paid exclusively in cash or upon the dissolution, liquidation or winding up of the Company or (ivii) any consideration distributed in any merger or consolidation to which Section 14.11 appliesStockholder Rights), 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 the close of business on the record date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the such record date fixed for such determination less minus the then fair market value (as determined by the Board of DirectorsDirectors of the Company, whose determination shall be conclusive and described in a Board Resolution filed with the TrusteeResolution) of the portion of the assets, shares or evidences of indebtedness or assets so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock on such record date. Such adjustment shall become effective immediately prior to the opening of business on the day following such record date.
(e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (d) of this Section) in an aggregate amount that, together with (i) the aggregate amount of any other distributions to all holders of its Common Stock made exclusively in cash within the l2 months preceding the date of payment of such distribution and in respect of which no conversion price adjustment pursuant to paragraph (e) of this Section has been made and (ii) the aggregate of any cash exceeds 10% of the product of the current market price per share of the Common Stock on the date fixed for the determination of stockholders entitled to receive such distribution multiplied by the number of shares of Common Stock outstanding on such date, then 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 paragraph (e) by a fraction of which the numerator shall be the current market price per share of the Common Stock on such date minus the amount of cash so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to . Such reduction shall become effective immediately prior to the opening of business on the day date following the date fixed for the determination payment of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5f) The reclassification of Common Stock into securities other than Common Stock (other than excluding any reclassification upon a merger or consolidation or merger to which Section 14.11 12.12 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the record date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4d) of this Section). If such reclassification changes the number of outstanding shares of Common Stock, and then such reclassification shall be deemed (bin addition to any effect provided in the previous sentence) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3c) of this Section).
(6g) For No adjustment in the purpose conversion price shall be required unless such adjustment would require an increase or decrease of at least 1% in such price; provided that any computation adjustment which by reason of this paragraph (g) is 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 1/100th of a share, as the case may be. No adjustment in the conversion price shall be required for any increase or decrease in the par value of the Common Stock.
(h) In addition to the adjustments in conversion price required by paragraphs (2a), (b), (c), (d), (e) and (4f) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected Company may from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may its discretion make such reductions decreases in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, price as it considers to be advisable in order to avoid advisable, including for purposes of avoiding or diminish diminishing any Federal income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for Federal income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusivereason.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or i) Notwithstanding any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) other provision of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; providedArticle XII, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon shall result in zero or in a negative number or shall reduce the issuance conversion price below the then par value per share of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, and any such Holders purported adjustment shall receive rights in addition instead reduce the conversion price to such par value, unless the Common Stock upon then has no par value, in which case such purported adjustment shall instead reduce the conversion of such Securitiesprice to $.01 per share. If Holders The Company hereby covenants not to take any action to increase the par value per share of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock.
(j) For the purpose of any computation in this Article, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders current market price per share of Common Stock on any date shall be deemed to be the average of the closing prices for the 5 consecutive days (on which securities exchanges are open for trading) preceding such date of determination. The closing price for each day shall be the last reported sales price regular way or, if no such separation. If reported sale takes place on such an adjustment day, the average of the reported closing bid and asked prices regular way, in either case as reported for consolidated transactions on the New York Stock Exchange or, if the Common Stock is made not listed or admitted to trading on the New York Stock Exchange, on the principal national securities exchange on which the Common Stock is listed or admitted to trading or, if the Common Stock is not so listed or admitted to trading, on the Nasdaq Stock Market or, if the Common Stock is not so listed or admitted to trading, the average of the closing bid and asked prices (or if closing bid and asked prices or not available, the average of the high bid and low asked prices for such rights are later redeemed, invalidated day) in the over-the-counter market as published by the appropriate regulatory organization or terminated, then a corresponding reversing adjustment will be made if not so published as furnished by any New York Stock Exchange member firm selected from time to time by the Conversion Rate on an equitable basisCompany.
Appears in 1 contract
Sources: Indenture (Xto Energy Inc)
Adjustment of Conversion Price. The Conversion Price shall be adjusted from time to time by the Company as follows:
(1a) In case the Company shall (i) pay or make a dividend or other distribution on any class in shares of capital stock Common Stock to the holders of the Company in its Common Stock, (ii) make a distribution in shares of Common Stock to the conversion price holders of its Common Stock, (iii) subdivide or split its outstanding Common Stock into a larger number of shares, or (iv) combine its outstanding Common Stock into a smaller number of shares, the Conversion Price in effect at immediately prior thereto shall be adjusted so that the opening Holder of business on the day following the date fixed any Security thereafter surrendered for determination of stockholders conversion shall be entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the that number of shares of Common Stock outstanding at that it would have owned or been entitled to receive had such Security been converted immediately prior to the happening of such event. An adjustment made pursuant to this subsection (a) shall become effective as of the close of business on the record date fixed for such determination in the case of a dividend in shares or distribution and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after as of the opening close of business on the day following the effective date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury case of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend a subdivision, split or make any distribution on shares of Common Stock held in the treasury of the Companycombination.
(2b) In case (i) the Company shall issue rights, options rights or warrants to all or substantially all holders of its 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 its Common Stock (or securities convertible into its Common Stock) at a price per share less than the Current Market Price per share of the Company's Common Stock at the record date for the determination of stockholders entitled to receive such rights or warrants or (ii) the Company shall sell or issue any Common Stock and the consideration per share of such Common Stock to be paid upon such sale or issuance is less than the Current Market Price per share of such Common Stock or the Company shall sell or issue warrants, rights or other convertible securities to subscribe for or purchase shares of its Common Stock at a price per share less than the current market price Current Market Price per share (determined as provided in paragraph (6) of this Section) of the such Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options sale or warrants (other than pursuant to a dividend reinvestment plan)issuance, the conversion price Conversion Price in effect at as of the opening close of business on the day following the record date fixed for such determination thereto shall be reduced adjusted so that the same shall equal the price determined by multiplying such conversion price the Conversion Price in effect on the record date by a fraction fraction, the numerator of which the numerator shall be the number of shares of the Company's Common Stock outstanding at the close of business on the date fixed for such determination record date, plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of the Company's Common Stock so offered for subscription (or purchase the aggregate conversion price of the convertible securities so offered) would purchase at such current market price Current Market Price, and the denominator of which shall be the number of shares of the Company's Common Stock outstanding at on such record date plus the number of additional shares of the Company's Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustment shall be made successively whenever any such rights, warrants or convertible securities are issued, and shall become effective as of the close of business on such record date. If at the date fixed for end of the period during which such determination plus 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 the Company's Common Stock actually issued (or the number of shares of the Company's Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening issuable upon conversion of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact convertible securities actually issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4c) 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 such Common Stock evidences to the extent that the aggregate cash dividend per share of its indebtednessthe Common Stock in any four fiscal quarters does not exceed the greater of (A) the amount per share of the 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 3.06(c) (as adjusted to reflect subdivisions or combinations of the Common Stock), shares and (B) 3.75% of any class the arithmetic average of capital stock or rights, options or warrants the Closing Prices during the ten Business Days immediately prior to subscribe for or purchase shares the date of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security declaration of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Sectiondividend, (iiy) any dividend or distribution paid exclusively in cashconnection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, and (iiiz) any dividend or cash that is distributed as part of a distribution referred requiring a Conversion Price adjustment pursuant to Section 3.06(d)), then, in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliessuch case, the conversion price Conversion Price shall be adjusted decreased so that the same shall equal the price determined by multiplying the conversion price Conversion Price in effect immediately prior to the close of business on the record date fixed for the determination of stockholders entitled to receive such distribution action by a fraction fraction, the numerator of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) Current Market Price of the Company's Common Stock on the such record date fixed for such determination less the then fair market value (as determined by the Board amount of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness cash so distributed (and not excluded as provided above) applicable to one share of the Company's Common Stock and the denominator shall be such current market price per share the Current Market Price of the Company's Common StockStock on such record date, such adjustment to become decrease shall be effective immediately prior to the opening of business on the day following the record date fixed for the determination of stockholders entitled to receive such distribution. Ifaction; provided that, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property cash so distributed applicable to one share of the Company's Common Stock is equal to or greater than the current market price per share Current Market Price of the such Common Stock on such the record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property cash such Holder would have received had such Holder converted each such Security on the record date. In the event that such datedividend 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 3.06(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 3.06(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.
(5d) The reclassification In case the Company shall distribute to all or substantially all holders of its Common Stock into securities any shares of Capital Stock of the Company (other than Common Stock Stock), evidences of indebtedness or other non-cash assets (other than including securities of any reclassification upon a consolidation Person), or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock distribute to all holders of its Common Stock rights or warrants to subscribe for or purchase any of its securities (excluding those referred to in Section 3.06(b)) (any of the foregoing hereinafter referred to as the "Distributed Securities"), 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 as of the close of business on the record date for such distribution by a fraction, the numerator of which shall be the Current Market Price of the Company's Common Stock on the record date mentioned below less the fair market value on such record date of the portion of the Distributed Securities applicable to one share of the Company's Common Stock (determined on the basis of the number of shares of the Company's Common Stock outstanding on the record date), and the effective date denominator of such reclassification which shall be deemed to be “the Current Market Price per share of the Company's Common Stock on such record date. Such adjustment shall become effective as of the close of business on the record date fixed for the determination of stockholders entitled to receive such distribution” and “. Notwithstanding the foregoing, in the event (x) that the Company shall distribute rights or warrants (other than those referred to in Section 3.06(b)) pro rata to holders of its Common Stock or (y) the then fair market value of the portion of the Distributable Securities so distributed applicable to one share of the Company's Common Stock is equal to or greater than the Current Market Price of such Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 3.06, make proper provision so that each Holder of a Security who converts such Security (or any portion thereof) after the record date fixed for such determination” within distribution and shall be entitled to receive upon such conversion, in addition to the meaning shares of paragraph the Company's Common Stock issuable upon such conversion (4) of this Sectionthe "Conversion Shares"), the amount of Distributed Securities such Holder would have received had such Holder converted such Security on such record date; provided that, with respect to clause (x), the foregoing provision shall apply only to the extent the Distributed Securities receivable upon conversion for such Security would be convertible, exchangeable or exercisable, as applicable, without any loss of rights or privileges for a period of at least 60 days following conversion of such Security.
(e) In case a tender or exchange offer made by the Company or any Subsidiary of the Company for all or any portion of the Company's Common Stock shall expire and such tender or exchange offer shall involve the payment by the Company or such Subsidiary of consideration per share of the Company's Common Stock having a fair market value (b) as determined by the Board of Directors of the Company or, to the extent permitted by applicable law, a subdivision duly authorized committee thereof, whose determination shall be conclusive, and described in a resolution of such Board of Directors or combinationsuch duly authorized committee thereof, as the case may be, 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 the Current Market Price per share of the Company's Common Stock on the Trading Day next succeeding the Expiration Time, the Conversion Price shall be reduced so that the same shall equal the Conversion 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 number of shares of the Company's Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Current Market Price of the Company's Common Stock 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 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 (y) the product of the number of shares of the Company's Common Stock outstanding (less any Purchased Shares) at the Expiration Time and the Current Market Price of the Company's 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 Trading Day next succeeding the Expiration Time. In the event that the Company or such reclassification into the number of Subsidiary is obligated to purchase shares of the Company's Common Stock pursuant to any such tender or exchange offer, but the Company or such Subsidiary is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price that would then be effect if such tender or exchange offer had not been made.
(f) In case a tender or exchange offer made by a Person other than the Company or any Subsidiary of the Company for an amount that increases the offeror's ownership of the Company's Common Stock to more than 30% of the Company's Common Stock outstanding immediately thereafter (shall expire and such tender or exchange offer shall involve the effective date payment by such Person of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price consideration per share of the Company's Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days having a fair market value (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 Company or to the nearest 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, a duly authorized committee thereof, whose determination shall be conclusive, and described in a resolution of such Board of Directors or such duly authorized committee thereof, as the Company from time to time case may decrease be) at the conversion price by any amount for any period Expiration Time that exceeds the Current Market Price of time the Company's Common Stock on the Trading Day next succeeding the Expiration Time, and in which, as of at least twenty (20) days, the decrease being irrevocable during such period, provided Expiration Time the Board of Directors of the Company is not recommending rejection of the offer, the Conversion Price shall have made be reduced so that the same shall equal the Conversion Price determined by multiplying the Conversion Price in effect immediately prior to the Expiration Time by a determination that such decrease would fraction of which the numerator shall be in the best interests number of shares of the Company, which determination 's Common Stock outstanding (including any tendered or exchanged shares) at the Expiration Time multiplied by the Current Market Price of the Company's Common Stock on the Trading Day next succeeding the Expiration Time and the denominator shall be conclusivethe sum of (x) 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 Purchased Shares and (y) the product of the number of shares of the Company's Common Stock outstanding (less any Purchased Shares) at the Expiration Time and the Current Market Price of the Company's 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. Whenever In the conversion price event that such Person is decreased obligated to purchase shares of the Company's Common Stock pursuant to any such tender or exchange offer, but such Person is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the preceding sentenceConversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such tender or exchange offer had not been made. Notwithstanding the foregoing, the adjustment described in this Section 3.06(f) shall not be made if, as of the Expiration Time, the offering documents with respect to such offer disclose a plan or intention to cause the Company to engage in any transaction described in Article 5.
(g) In any case in which this Section 3.06 shall require that an adjustment be made on a record date established for purposes of this Section 3.06, 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 3.09) issuing to the Holder of any Security converted after such record date but prior to the issue date, the shares of the Company's Common Stock and other capital stock of the Company issuable upon such conversion over and above the shares of the Company's 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 prepare a certificate signed by the Treasurer issue or cause its transfer agents to issue due bills or other appropriate officer evidence prepared by the Company of the Company stating the decreased conversion price and the period during right to receive such shares. If any distribution in respect of which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no an adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated Conversion Price is required to be made as of February 19the record date or effective date therefor is not thereafter made or paid by the Company for any reason, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders Conversion Price shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made readjusted to the Conversion Rate on an equitable basisPrice which would then be in effect if such record date had not been fixed or such effective date had not occurred.
Appears in 1 contract
Sources: Senior Guaranteed Convertible Notes Indenture (Impsat Fiber Networks Inc)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies, 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e .i.e., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture (FMC Corp)
Adjustment of Conversion Price. (1) In case If the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction fraction, of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and of which the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case If the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price Conversion Price by a fraction fraction, of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock 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 outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time 1503,1504 104 96 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case If outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case if outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case If the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the retained earnings of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction fraction, of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less determination, reduced by the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences evidence of indebtedness 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 to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 1511 applies) shall be deemed to involve 1504 105 97
(a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” ") within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing market prices for the five 10 consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not less than ten nor more than 20 trading days before, and ending not later than, the earlier of 80 Business Days before the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distributionquestion. The closing price for each day shall be the last reported last sale sales price (regular way on the composite tape or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors Company for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithpurpose.
(7) The Company may make such reductions in the conversion priceConversion Price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish that any event treated for Federal income tax to any holders of shares of Common Stock resulting from any purposes as a dividend or distribution of stock or issuance of stock rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall not be final and conclusive.
(8) The Company may make such decreases taxable to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposesrecipients.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock Capital Stock of the Company in shares of Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all or substantially all holders of its shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock (or securities convertible into or exchangeable for Common Stock) at a price per share (or having a conversion or exchange price per share) less than the current market price per share (determined as provided in paragraph (6) of this SectionSection 10.4) of the shares of Common Stock on the date fixed for the determination of stockholders shareholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering subscription price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible or exchangeable securities so offered) would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any In the event that all of the shares of Common Stock subject to such date fixed for such determination, any such rights, options rights or warrants are have not in fact issuedbeen issued when such rights or warrants expire, or are not exercised prior to the expiration thereof, then the conversion price shall promptly be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, readjusted to the conversion price that which would have been then be in effect if had the unexercised rights, options adjustment upon the issuance of such rights or warrants had never been granted or such determination date had not been fixed, as made on the case may be. For basis of the purposes of this paragraph (2), the actual number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies, 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance exercise of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.such
Appears in 1 contract
Sources: Indenture (American Retirement Corp)
Adjustment of Conversion Price. (1i) The Conversion Price shall be subject to adjustment, calculated by the Company, from time to time as follows: 46
(A) In case the Company shall hereafter pay a dividend or make a dividend or other distribution on any class of capital stock to all holders of the Company outstanding Common Stock in shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction fraction:
(1) the numerator of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date Record Date fixed for such determination and determination; and
(2) the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such . Such reduction to shall become effective immediately after the opening of business on the day following the date fixed for such determinationRecord Date. If, after any such date fixed for determination, If any dividend or distribution of the type described in this Section 12(e)(i) is declared but not in fact paidso paid or made, the conversion price Conversion Price shall again be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, adjusted to the conversion price Conversion Price that would have been then be in effect if such determination date dividend or distribution had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Companydeclared.
(2ii) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, and conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4iii) In case the Company shall issue rights or warrants (other than any rights or warrants referred to in Section 12(e)(iv)) to all holders of its outstanding shares of Common Stock exercisable for not more than 60 days entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the Current Market Price on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the date after such Record Date by a fraction:
(A) the numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date, plus the number of shares which the aggregate offering price of the total number of shares so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price; and 47
(B) the denominator of which shall be the number of shares of Common Stock outstanding on the close of business on the Record Date, plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustment shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such rights or warrants. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants, the Conversion Price shall be readjusted to the Conversion Price which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible into Common Stock) actually delivered. In the event that such rights or warrants are not so issued, the Conversion Price shall again be adjusted to be 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. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such Current Market Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received for such rights or warrants, and the value of such consideration (if other than cash) shall be determined by the Board of Directors. Notwithstanding the foregoing, in the event that the Company shall make a distribution subject to this Section 12(e)(iii), the Company may, in lieu of making any adjustment required pursuant to this Section 12(e)(iii), make proper provision so that each holder of a Note who converts such Note (or any portion thereof) after the Record Date for such distribution shall be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion, the securities such Holder would have received had such Holder converted such Note (or portion thereof) immediately prior to such Record Date.
(iv) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock the Company (other than any rights, options dividends or warrants that by their terms will also be issued distributions to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Personwhich Section 12(e)(i) applies) or other property (including evidences of its indebtedness, cash or assets or other assets, including securities, but excluding (i1) any rights, options rights or warrants referred to in paragraph Section 12(e)(iii), (2) of this Sectionany stock, securities or other property or assets (iiincluding cash) any dividend distributed in connection with a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or distribution conveyance to which Section 12(l) applies, and (3) dividends and distributions paid exclusively in cashcash (the securities described in foregoing clauses (1), (iii2) any dividend or distribution referred and (3) hereinafter in this Section 12(e)(iv) called the “securities”), then, in each such case, subject to in the second succeeding paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies12(e)(iv), the conversion price Conversion Price shall be adjusted reduced so that the same shall be equal to the price determined by multiplying the conversion price Conversion Price in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled Record Date with respect to receive such distribution by a fraction fraction: 48
(A) the numerator of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock Current Market Price on the date fixed for such determination date, less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described set forth in a Board Resolution filed with the TrusteeResolution) on such date of the portion of the assets, shares or evidences of indebtedness securities so distributed applicable to one share of Common Stock and (determined on the basis of the number of shares of the Common Stock outstanding on the Record Date); and
(B) the denominator of which shall be such current market price per share of the Common Stock, such adjustment to Current Market Price. Such reduction shall become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distributionRecord Date. IfHowever, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event that (x) the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property securities so distributed applicable to one share of Common Stock is equal to or greater than the current Current Market Price on the Record Date or (y) the Current Market Price on the Record Date exceeds the fair market price per share value of the Common Stock on such datedistribution by less than $1.00, then, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion of a Security (or any portion thereof) the amount of such evidences of indebtedness, shares of any class of capital stock or other property securities such Holder would have received had such Holder converted such Security (or portion thereof) immediately prior to 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 that 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 12(e)(iv) by reference to the actual or when issued trading market for any securities comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the “Reference Period”) used in computing the Current Market Price pursuant to Section 12(e)(vii) to the extent possible, unless the Board of Directors in a Board Resolution determines in good faith that determining the fair market value during the Reference Period would not be in the best interest of the Holders. Notwithstanding the foregoing, in the event that the Company shall make a distribution subject to this Section 12(e)(iv), the Company may, in lieu of making any adjustment required pursuant to this Section 12(e)(iv), make proper provision so that each Security on holder of a Note who converts such date.
Note (5or any portion thereof) The reclassification after the Record Date for such distribution shall be entitled to receive upon such conversion, in addition to the shares of Common Stock into issuable upon such conversion, the securities other than Common Stock such Holder would have received had such Holder converted such Note (other than any reclassification upon a consolidation or merger portion thereof) immediately prior to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock Record Date. 49 Rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase 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”):
(A) are deemed to be transferred with such shares of Common Stock;
(B) are not exercisable; and
(C) are also issued in respect of future issuances of Common Stock; shall be deemed not to have been distributed for purposes of this Section 12(e)(iv) (and no adjustment to the effective date Conversion Price under this Section 12(e)(iv) will be required) until the occurrence of the earliest Trigger Event. If such reclassification right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, evidences of indebtedness or other assets or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and record date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder 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 resulted in an adjustment to the Conversion Price under this Section 12(e)(iv):
(A) 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 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
(B) in the case of such rights or warrants all of which shall have expired or been terminated without exercise, the Conversion Price shall be readjusted as if such rights and warrants had never been issued. For purposes of this Section 12(e)(iv) and Sections 12(e)(i), 12(e)(ii) and 12(e)(iii), any dividend or distribution to which this Section 12(e)(iv) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which Section 12(e)(ii) applies, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 12(e)(iii) applies (or any combination thereof), shall be deemed instead to be:
(A) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants other than such shares of Common Stock, such subdivision or combination or such rights or warrants to which Sections 12(e)(i), 12(e)(ii) and 12(e)(iii) apply, respectively (and any Conversion Price reduction required by this Section 12(e)(iv) with respect to such dividend or distribution shall then be made), immediately followed by
(B) a dividend or distribution of such shares of Common Stock, such subdivision or combination or such rights or warrants (and any further Conversion Price reduction required by Sections 12(e)(i), 12(e)(ii) and 12(e)(iii) with respect to such dividend or distribution shall then be made), except:
(1) the Record Date of such dividend or distribution shall be substituted as (x) “the date fixed for the determination of stockholders entitled to receive such dividend or other distribution,” “Record Date fixed for such determinations” and “Record Date” within the meaning of Section 12(e)(i), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of Section 12(e)(ii), and (z) as “the date fixed for the determination of stockholders entitled to receive such rights or warrants,” “the Record Date fixed for the determination of the stockholders entitled to receive such rights or warrants” and such “Record Date” within the meaning of Section 12(e)(iii); and
(2) any shares of Common Stock included in such dividend or distribution shall not be deemed “outstanding at the close of business on the date fixed for such determination” within the meaning of paragraph Section 12(e)(i) and any reduction or increase in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distribution.
(4v) In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of this Sectionits Common Stock cash (excluding any cash that is distributed upon a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 12(l) applies or as part of a distribution referred to in Section 12(e)(iv)), then, and in each such case, immediately after the close of business on such date, 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 close of business on such Record Date by a fraction: 51
(bA) a subdivision or combinationthe numerator of which shall be equal to the Current Market Price on the Record Date less an amount equal to the quotient of (x) the amount of such distribution, as the case may be, of divided by (y) the number of shares of Common Stock outstanding immediately prior to such reclassification into on the number Record Date, and
(B) the denominator of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification which shall be deemed equal to the Current Market Price on such 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 day upon which Conversion Price that would then be in effect if such subdivision becomes effective” dividend or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section)distribution had not been declared.
(6vi) For In case a tender offer made by the purpose Company or any of its Subsidiaries for all or any computation under paragraphs (2) and (4) portion of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is tradedshall expire and such tender offer (as amended upon the expiration thereof) selected by shall require the Board of Directors commencing not more than 20 trading days before, and ending not later than, payment to stockholders (based on the earlier acceptance (up to any maximum specified in the terms of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price value (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors Directors, whose determination shall be conclusive and set forth in good faith.a Board Resolution) that combined together with:
(7A) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term aggregate of the securities of a series that is convertible or any shorter term, in addition to those required cash plus the fair market value (as determined by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the CompanyDirectors, which whose determination shall be conclusive. Whenever conclusive and set forth in a Board Resolution), as of the conversion price is decreased pursuant to the preceding sentenceexpiration of such tender offer, of consideration payable in respect of any other tender offers, by the Company shall prepare a certificate signed by the Treasurer or other appropriate officer any of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office its subsidiaries for all or agency maintained for the purpose any portion of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.expiring withi
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (Electro Energy Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustments, calculated by the Company, from time to time as follows:
(1a) In case the Company shall hereafter pay a dividend or make a dividend or other distribution on any class of capital stock to all holders of the Company outstanding Common Stock in shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction fraction:
(1) the numerator of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date Record Date (as defined in Section 10.04(g)) fixed for such determination and determination, and
(2) the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such . Such reduction to shall become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixedRecord Date. For the purposes purpose of this paragraph (1a), the number of shares of 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 Common StockCompany. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this Section 10.04(a) is declared but not so paid or made, the Conversion Price shall again be adjusted to the Conversion Price which would then be in effect if such dividend or distribution had not been declared.
(2b) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, and conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4c) In case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within forty-five (45) days after the date fixed for determination of stockholders entitled to receive such rights or warrants) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a conversion price per share) less than the Current Market Price (as defined in Section 10.04(g)) on the Record Date fixed for the determination of stockholders entitled to receive such rights 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:
(1) the numerator of which shall be the number of shares of Common Stock outstanding at the close of business on the Record Date plus the number of shares which the aggregate offering price of the total number of shares so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and
(2) the denominator of which shall be the number of shares of Common Stock outstanding on the close of business on the Record Date plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the convertible securities so offered are convertible). Such adjustment shall become effective immediately after the opening of business on the day following the Record Date fixed for determination of stockholders entitled to receive such rights or warrants. To the extent that shares of Common Stock (or securities convertible into Common Stock) are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants the Conversion Price shall be readjusted to the Conversion Price which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock (or securities convertible into Common Stock) actually delivered. In the event that such rights or warrants are not so issued, 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. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such Current Market Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration if other than cash, to be determined by the Board of Directors.
(d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of Capital Stock of the Company (other than any dividends or distributions to which Section 10.04(a) applies) or evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) cash or other property (assets, including cash or assets or securities, but excluding (i1) any rights, options rights or warrants referred to in paragraph Section 10.04(c), (2) of this Sectionany stock, securities or other property or assets (iiincluding cash) any dividend distributed in connection with a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or distribution conveyance to which Section 10.11 hereof applies and (3) dividends and distributions paid exclusively in cashcash (the securities described in foregoing clauses (1), (iii2) and (3) hereinafter in this Section 10.04(d) called the “excluded securities”), then, in each such case (unless the Company elects to reserve such securities for distribution to the Noteholders upon the conversion of the Notes so that any dividend or distribution referred such Holder converting Notes will receive upon such conversion, in addition to in the shares of Common Stock to which such Holder is entitled, the amount and kind of such securities which such Holder would have received if such Holder had converted its Notes into Common Stock immediately prior to the Record Date), subject to the second succeeding paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies10.04(d), the conversion price Conversion Price shall be adjusted so that the same shall be equal to the price determined by multiplying the conversion price Conversion Price in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled Record Date (as defined in Section 10.04(g)) with respect to receive such distribution by a fraction fraction:
(1) the numerator of which the numerator shall be the current market price per share Current Market Price (determined as provided in paragraph (6Section 10.04(g)) of this Section) of the Common Stock on the date fixed for such determination Record Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described set forth in a Board Resolution filed with the TrusteeResolution) on such Record Date of the portion of the assets, shares or evidences of indebtedness securities so distributed (other than excluded securities) applicable to one share of Common Stock and (determined on the basis of the number of shares of the Common Stock outstanding on the Record Date), and
(2) the denominator of which shall be such current market price per share of the Common Stock, such adjustment to Current Market Price. Such reduction shall become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distributionRecord Date. IfHowever, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event that the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property securities so distributed (other than excluded securities) applicable to one share of Common Stock is equal to or greater than the current market price per share of Current Market Price on the Common Stock on such dateRecord Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion of a Note (or any portion thereof) the amount of such evidences of indebtedness, shares of any class of capital stock or securities so distributed (other property than excluded securities) such Holder would have received had such Holder converted each Security on such date.
Note (5or portion thereof) The reclassification immediately prior to 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 Common Stock into Directors determines the fair market value of any distribution for purposes of this Section 10.04(d) by reference to the actual or when issued trading market for any securities other than Common Stock comprising all or part of such distribution (other than any reclassification upon excluded securities), it must in doing so consider the prices in such market over the same period (the “Reference Period”) used in computing the Current Market Price pursuant to Section 10.04(g) to the extent possible, unless the Board of Directors in a consolidation Board Resolution determines in good faith that determining the fair market value during the Reference Period would not be in the best interest of the Holder. Rights or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase 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 be deemed not to have been distributed for purposes of this Section 10.04(d) (and no adjustment to the effective date Conversion Price under this Section 10.04(d) will be required) until the occurrence of the earliest Trigger Event. If such reclassification right or warrant is subject to subsequent events, upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, evidences of indebtedness or other assets or entitle the holder to purchase a different number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance and Record Date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder 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 resulted in an adjustment to the Conversion Price under this Section 10.04(d):
(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 of Common Stock with respect to such rights or warrant (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 such rights or warrants all of which shall have expired or been terminated without exercise, the Conversion Price shall be readjusted as if such rights and warrants had never been issued. No adjustment of the Conversion Price shall be made pursuant to this Section 10.04(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to holders of Notes upon conversion by such holders of Notes to Common Stock. For purposes of this Section 10.04(d) and Sections 10.04(a), 10.04(b) and 10.04(c), any dividend or distribution to which this Section 10.04(d) is applicable that also includes shares of Common Stock, a subdivision or combination of Common Stock to which Section 10.04(b) applies, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 10.04(c) applies (or any combination thereof), shall be deemed instead to be:
(1) a dividend or distribution of the evidences of indebtedness, assets, shares of Capital Stock, rights or warrants other than such shares of Common Stock, such subdivision or combination or such rights or warrants to which Sections 10.04(a), 10.04(b) and 10.04(c) apply, respectively (and any Conversion Price reduction required by this Section 10.04(d) with respect to such dividend or distribution shall then be made), immediately followed by
(2) a dividend or distribution of such shares of Common Stock, such subdivision or combination or such rights or warrants (and any further Conversion Price reduction required by Sections 10.04(a), 10.04(b) and 10.04(c) with respect to such dividend or distribution shall then be made), except:
(A) the Record Date of such dividend or distribution shall be substituted as (x) “the date fixed for the determination of stockholders entitled to receive such dividend or other distribution”, “Record Date fixed for such determinations” and “Record Date” within the meaning of Section 10.04(a), (y) “the day upon which such subdivision becomes effective” and “the day upon which such combination becomes effective” within the meaning of Section 10.04(b), and (z) as “the date fixed for the determination of stockholders entitled to receive such rights or warrants”, “the Record Date fixed for the determination of the stockholders entitled to receive such rights or warrants” and such “Record Date” within the meaning of Section 10.04(c), and
(B) any shares of Common Stock included in such dividend or distribution shall not be deemed “outstanding at the close of business on the date fixed for such determination” within the meaning of paragraph Section 10.04(a) and any reduction or increase in the number of shares of Common Stock resulting from such subdivision or combination shall be disregarded in connection with such dividend or distribution.
(4e) In case the Company shall, by dividend or otherwise, distribute to all holders of this Sectionits Common Stock cash (excluding any cash that is distributed upon a reclassification, change, merger, consolidation, statutory share exchange, combination, sale or conveyance to which Section 10.11 hereof applies or as part of a distribution referred to in Section 10.04(d) hereof), then and in each such case, immediately after the close of business on such date, 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 close of business on such Record Date by a fraction:
(i) the numerator of which shall be equal to the Current Market Price on the Record Date less an amount equal to the quotient of (x) such amount distributed to all holders of its Common Stock and (by) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding on the Record Date, and
(ii) the denominator of which shall be equal to the Current Market Price on such date. However, in the event that the then fair market value (as so determined) of the portion of the securities so distributed (other than excluded securities) applicable to one share of Common Stock is equal to or greater than the Current Market Price on the 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 of a Note (or any portion thereof) the amount of cash such Holder would have received had such Holder converted such Note (or portion thereof) immediately prior to such reclassification into Record Date. In the number of shares of Common Stock outstanding immediately thereafter (and event that such dividend or distribution is not so paid or made, the effective date of such reclassification Conversion Price shall again be deemed adjusted to be “the day upon Conversion Price which would then be in effect if such subdivision becomes effective” dividend or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section)distribution had not been declared.
(6f) For In case a tender offer made by the purpose Company or any of its Subsidiaries for all or any computation under paragraphs (2) and (4) portion of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is tradedshall expire and such tender offer (as amended upon the expiration thereof) selected by shall require the Board of Directors commencing not more than 20 trading days before, and ending not later than, payment to stockholders (based on the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect acceptance (up to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or maximum specified in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average terms of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price in effect at any date shall be subject to adjustment from time to time as set forth below. If and whenever at any time prior to the Time of Expiry the Corporation shall subdivide, redivide or changethe outstanding Common Shares into a greater number of shares, reduce, combine or consolidate the outstanding Common Shares into a smaller number of shares, or issue Common Shares or securities convertible into Common Shares to the holders of all or substantially all of the outstanding Common Shares by way of a dividend or distribution (other than the issue of Common Shares to holders of Common Shares who have elected to receive dividends or distributions in the form of Common Shares in lieu of cash dividends or cash distributions paid in the ordinary course on the Common Shares), the applicable Conversion Price in effect on the effective 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 record date by a fraction:
(1) In the denominator of which shall be the number of 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 Company number of Common Shares that would have been outstanding had such securities been exchanged for or converted into Common Shares on such record date, assuming in any case where such securities are not then convertible or exchangeable but subsequently become 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 pay 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 this Section 6.5 shall occur. Any such issue of Common Shares or make securities convertible into Common Shares by way of a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced 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 (b) and (c) of this Section 5.5. If and whenever at any time prior to the Time of Expiry the Corporation shall fix 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 (out of the ordinary course), 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 conversion price record date by a fraction 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 number of shares Current Market Price per Common Share on such record date minus the amount in cash per Common Share distributed to holders of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after extent that any such date fixed for determination, any cash dividend or distribution is not in fact paid, the conversion price Conversion Price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, re-adjusted to the conversion price that Conversion Price which would have been then be in effect if such determination record date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock If and whenever at any time outstanding prior to the Time of Expiry the Corporation shall not include shares held in fix a record date for the treasury issuance of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Stock Shares entitling them them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase shares of Common Stock Shares (or securities convertible into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the current market price per share (determined as provided in paragraph (6) of this Section) 95% of the Common Stock Current Market Price on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan)record date, the conversion applicable Conversion Price shall be adjusted immediately after such record date so that it shall equal the price determined by multiplying the applicable Conversion Price in effect at the opening of business on the day following the such record date fixed for such determination shall be reduced by multiplying such conversion price by a fraction fraction, of which the numerator shall be the total number of shares Common Shares outstanding on such record date plus a number of Common Stock outstanding at the close of business on the date fixed for such determination plus Shares equal to the number of shares of Common Stock that arrived at by dividing the aggregate of the offering price of the total number of shares of additional Common Stock so Shares offered for subscription or purchase would purchase at (or the aggregate conversion or exchange price of the convertible securities so offered) by such current market price Current Market Price, and of which the denominator shall be the total number of shares of Common Stock Shares outstanding at the close of business on the such record date fixed for such determination plus the total number of shares of additional Common Stock so Shares offered for subscription or purchase, purchase (or into which the convertible securities so offered are convertible). Such adjustment shall be made successively whenever such reduction to become effective immediately after a record date is fixed. To the opening of business on the day following the date fixed for such determination. If, after extent that any such date fixed for such determinationoptions, any such rights, options rights or warrants are not in fact issuedso issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the conversion price applicable Conversion Price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, re-adjusted to the conversion price that Conversion Price which would have been then be in effect if the unexercised rights, options or warrants had never been granted or such determination record date had not been fixedfixed 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. For If and whenever at any time prior to the purposes Time of this paragraph Expiry, there is a reclassification of the Common Shares or a capital reorganization of the Corporation other than as described in Section 5.5(a) or a consolidation, amalgamation, arrangement, share exchange, merger of the Corporation with or into any other Person or other entity or acquisition of the Corporation or other combination pursuant to which the Common Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the property and assets of the Corporation as an entirety or substantially as an entirety to any other Person (2other 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 such event, a "Merger Event"), any holder of a Debenture who has not exercised its right of conversion prior to the effective 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 and Warrants 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 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 Common Stock. The Company will not issue any rightsShares receive pursuant to such liquidation, options dissolution or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increasewinding-up, as the case may be, that such holder of a Debenture would have been entitled to become effective immediately after the opening of business 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 day following record date or the day effective date thereof, 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 which the exercise of the conversion right, subject to Section 5.5(a). In addition, in respect of the Warrants forming part of the Units to be received on conversion the Debentureholder shall receive such subdivision amount of cash, warrants or combination becomes effective.
(4) In other securities as the Board of Directors acting in good faith believe to provide equivalent value to the Warrants that the Debentureholder was otherwise entitled to hereunder. If determined appropriate by the Board of Directors, to give effect to or to evidence the provisions of this Section 5.5(d), the Corporation, its successor, or such purchasing Person or other entity, as the case the Company may be, shall, by dividend prior to or otherwisecontemporaneously with any such reclassification, distribute 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 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 5.5(d) shall be a supplemental indenture entered into pursuant to the provisions of Article 14. 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 5.5(d) and which shall apply to successive reclassifications, capital reorganizations, amalgamations, consolidations, mergers, share exchanges, acquisitions, combinations, sales or conveyances. If the Corporation shall make a distribution to all or substantially all of the holders of its Common Stock Shares of shares in the capital of the Corporation, other than Common Shares, or evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) indebtedness or other property assets of the Corporation, including securities (including cash or assets or securities, but excluding (i) any rights, options issuance of rights or warrants referred for which an adjustment was made pursuant to in paragraph (2Section 5.5(c) of this Section, and (ii) any dividend or distribution paid exclusively in cashcash for which an adjustment was made pursuant to Section 5.5(b)) (the "Distributed Securities"), then in each such case (iii) any unless the Corporation distributes such Distributed Securities to the holders of Debentures on such dividend or distribution referred date (as if each holder had converted such Debenture into Units immediately preceding the record date with respect to such distribution)) the applicable Conversion Price in paragraph (1) effect immediately preceding the record date fixed for the determination of this Section and (iv) any consideration distributed in any merger shareholders entitled to receive such dividend or consolidation to which Section 14.11 applies, the conversion price distribution shall be adjusted so that the same shall equal the price determined by multiplying the conversion price applicable Conversion Price in effect immediately prior to the close of business on the preceding such record date fixed for the determination of stockholders entitled to receive such distribution 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 Current Market Price per share (determined as provided in paragraph (6) of this Section) of the Common Stock Share on the such record date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value, subject to approval by the CSE (or such other recognized stock exchange on which the Common Shares are listed for trading) and described in a Board Resolution filed with which shall be evidenced by an Officer's Certificate delivered to the Trustee) on such record date of the portion of the assets, shares or evidences of indebtedness Distributed Securities so distributed applicable to one share Common Share (determined on the basis of the number of Common Stock and Shares outstanding at the denominator close of business on such record date). Such adjustment shall be made successively whenever any such current market price per share of the Common Stock, such adjustment to distribution is made and shall become effective immediately prior to after the opening of business on the day following the record date fixed for the determination of stockholders shareholders entitled to receive such distribution. If, after any In the event that such date fixed for determination, any such dividend or distribution is not in fact so paid or made, the conversion price applicable Conversion Price shall again be immediately readjusted effective as of adjusted to be the date that the Board of Directors determines not to make such distribution, to the conversion price Conversion Price that would have been then be in effect if such determination date dividend or distribution had not been fixeddeclared. In the event If the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property Distributed Securities so distributed applicable to one Common Share is equal to or greater than the current market price Current Market Price per share of the Common Stock Share on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder holder of a Security Debenture shall have the right to receive upon conversion the amount of Distributed Securities so distributed that such evidences of indebtedness, shares of any class of capital stock or other property such Holder holder would have received had such Holder holder converted each Security Debenture on such record date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by . If the Board of Directors commencing not more than 20 determines the fair market value of any distribution for purposes of this clause (d) of Section 5.5 by reference to the actual or when issued trading days beforemarket for any securities, and ending not later thanit must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Shares. If any issuer bid made by the Corporation or any of its Subsidiaries for all or any portion of Common Shares shall expire, then, if the issuer bid shall require the payment to shareholders of consideration per Common Share having a fair market value (determined as provided below) that exceeds the Current Market Price on the last date (the "Expiration Date") tenders could have been made pursuant to such issuer bid (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the "Expiration Time"), the earlier applicable Conversion Price shall be adjusted so that the same shall equal the rate determined by multiplying the applicable Conversion Price in effect immediately preceding the close of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way business on the applicable exchange or in Expiration Date by a fraction of which (i) the applicable market without the right to receive such issuance or distribution. The closing price for each day denominator shall be the reported last sale price sum of (or, in case no such reported sale takes place on such day, A) the average fair market value of the reported closing bid and asked prices) on such date as reported in composite transactions for aggregate consideration (the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter fair market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, value as determined by the Board of Directors in good faith.
Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officer's Certificate delivered to the Trustee) payable to shareholders based on the acceptance (7) The Company may make such reductions up to any maximum specified in the conversion priceterms of the issuer bid) of all Common Shares validly tendered and not withdrawn as of the Expiration Time (the Common Shares deemed so accepted, in addition up to those required by paragraphs (1)any such maximum, (2), (3being referred to as the "Purchased Common Shares") and (4B) the product of the number of Common Shares outstanding (less any Purchased Common Shares and excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time and the Current Market Price on the Expiration Date and (ii) the numerator of which shall be the product of the number of Common Shares outstanding (including Purchased Common Shares but excluding any Common Shares held in the treasury of the Corporation) at the Expiration Time multiplied by the Current Market Price on the Expiration Date, such increase to become effective immediately preceding the opening of business on the day following the Expiration Date. In the event that the Corporation is obligated to purchase Common Shares pursuant to any such issuer bid, but the Corporation is permanently prevented by Applicable Law from effecting any or all such purchases or any or all such purchases are rescinded, the applicable Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of Common Shares actually purchased, if any. If the application of this clause (e) of this Section, as it considers to be advisable in order to avoid or diminish any income tax Section 5.5 to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions issuer bid would result in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment decrease in the conversion price shall be required unless such applicable Conversion Price, no adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 for such issuer bid under this clause (e). For purposes of a share, as the case may be.
(10) To the extent permitted by applicable lawthis Section 5.5(f), the Company from time to time may decrease the conversion price term "issuer bid" shall mean an issuer bid under Applicable Securities Legislation or a take-over bid under Applicable Securities Legislation by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests Subsidiary of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained Corporation for the purpose of conversion of securities pursuant Common Shares and all references to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares "purchases" of Common Stock received upon conversion Shares in issuer bids (and all similar references) shall mean and include the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders purchase of Common Stock on the date of such separation. If such an adjustment is made Shares in issuer bids and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Secured Trust Indenture
Adjustment of Conversion Price. Except in connection with an Organic Change, which shall be subject to Section C below, the Conversion Price shall be subject to adjustment from time to time as follows:
(1a) In case the Company Corporation after the date of the original issuance of the Series A Preferred Stock shall pay a dividend or make a dividend or other distribution on any class to all holders of capital stock shares of the Company Common Stock in shares of Common Stock, then in any such case the conversion price Conversion Price in effect at the opening of business on the day following the record date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced to a price obtained by multiplying such conversion price Conversion Price by a fraction of which (x) the numerator shall be the number of shares of Common Stock outstanding at the close of business on the such record date fixed for such determination and (y) the denominator shall be the sum of such number of shares of Common Stock outstanding and the total number of shares of Common Stock constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determinationrecord date. If, after any such date fixed for determination, If any dividend or distribution of the type described in this subsection (a) is declared but not in fact paidso paid or made, the conversion price Conversion Price shall again be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, adjusted to the conversion price Conversion Price that would have been then be in effect if such determination date dividend or distribution had not been fixeddeclared. For the purposes of this paragraph subsection (1a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company Corporation but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will Corporation shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the CompanyCorporation.
(2b) In case the Company Corporation after the date of the original issuance of the Series A Preferred Stock shall issue rights, options rights or warrants to all holders of its any class of Common Stock entitling them to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share (or having a conversion price per share) less than the current market price per share (determined as provided in paragraph (6) of this Section) Closing Price of the Common Stock on the record date fixed for the determination of stockholders entitled to receive such rights, options right or warrants (other than pursuant to a dividend reinvestment plan)warrant, the conversion price in effect at the opening of business on the day following the date fixed for such determination Conversion Price shall be reduced to a price obtained by multiplying such conversion price Conversion Price by a fraction of which (x) the numerator shall be the number of shares of Common Stock outstanding at the close of business on the such record date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase (or the aggregate conversion price of the convertible securities so offered) would purchase at the Closing Price on such current market price record date, and (y) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the such record date fixed for such determination plus the total number of shares of Common Stock so offered for subscription or purchase, such reduction to purchase (or into which the convertible securities so offered are convertible). Such adjustment shall become effective immediately after the opening of business on the day following such record date. To the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options extent that shares of Common Stock (or warrants securities convertible into Common Stock) are not in fact issued, or are not exercised prior delivered pursuant to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options rights or warrants, upon the expiration or termination of such rights or warrants, the Conversion Price shall be readjusted to the conversion price Conversion Price that would have been then be in effect if had the unexercised rights, options adjustment made upon the issuance of such rights or warrants had never been granted or such determination date had not been fixed, as made on the case may be. For the purposes basis of this paragraph (2), delivery of only the number of shares of Common Stock (or securities convertible into Common Stock) actually delivered. If such rights or warrants are not so issued, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if such record date had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at any time outstanding shall not include shares held less than such Closing Price on such record date, and in determining the treasury aggregate offering price of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of such shares of Common Stock. The Company will not issue , there shall be taken into account any rights, options consideration received by the Corporation for such rights or warrants and any amount payable on exercise or conversion thereof, the fair market value of such consideration, if other than cash, to be determined by the Board of Directors in respect of shares of Common Stock held in the treasury of the Companyits good faith judgment, whose determination shall be conclusive.
(3c) In case after the date of the original issuance of the Series A Preferred Stock outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case after the original issuance of the Series A Preferred Stock outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company shall, by dividend or otherwise, Corporation after the date of the original issuance of the Series A Preferred Stock shall distribute to all holders of its shares of Common Stock evidences of its indebtednessindebtedness or assets (including any regular periodic cash dividend or extraordinary cash dividend), shares of any class of capital stock Equity Securities (other than Common Stock) or rights, options or warrants rights to subscribe for or purchase shares of any class of capital stock (Equity Securities other than any rightsCommon Stock, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of in each such series into shares of Common Stock without any action required by case the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies, the 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 close of business on the record date fixed for the determination of stockholders entitled to receive such distribution shall be adjusted to a price obtained by multiplying such Conversion Price by a fraction of which (x) the numerator shall be the current market price Closing Price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on such record date, and (y) the denominator shall be such Closing Price per share of Common Stock on such record date fixed for such determination less plus the then then-current fair market value as of such record date (as determined by the Board of Directors, whose determination shall be conclusive and described Directors in a Board Resolution filed with the Trusteeits good faith judgment) of the portion of the assets, shares assets or evidences of indebtedness or Equity Securities or subscription rights so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following such record date; provided, however, that no adjustment shall be made if the date fixed for Corporation issues or distributes to each Holder the determination of stockholders assets, securities or rights referred to above that each such Holder would have been entitled to receive had the Series A Preferred Stock held by such distribution. IfHolder been converted prior to such record date; provided further, after any such date fixed for determinationhowever, any such distribution is not in fact made, that if the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then then-current fair market value (as so determineddetermined by the Board of Directors in its good faith judgment) of the portion of the assets or evidences of indebtedness, shares of any class of capital stock indebtedness or other property Equity Securities or subscription rights so distributed applicable to one share of Common Stock is equal to or greater than the current market price per share of the Common Stock Closing Price on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such assets or evidences of indebtedness, shares of any class of capital stock indebtedness or other property Equity Securities or subscription rights so distributed that such Holder would have received had such Holder converted each Security share of its Series A Preferred Stock on the record date. If any dividend or distribution of the type described in this subsection (d) is declared but not so paid or made, the Conversion Price shall again be adjusted to the Conversion Price that would then be in effect if such datedividend or distribution had not been declared. The Corporation shall provide any Holder, upon receipt of a written request therefor, with any indenture or other instrument defining the rights of the holders of any indebtedness, assets, subscription rights or Equity Securities referred to in this subsection (d).
(5e) The reclassification In case, after the date of the original issuance of the Series A Preferred Stock, a tender or exchange offer made by the Corporation or any Subsidiary of the Corporation for all or any portion of the Common Stock into securities other than shall be consummated and such tender offer shall involve an aggregate consideration having a fair market value (as determined by the Board of Directors in its good faith judgment) at the last time (the "Offer Time") tenders may be made pursuant to such tender or exchange offer (as it may be amended) that, together with the aggregate of the cash plus the fair market value (as determined by the Board of Directors in its good faith judgment), as of the Offer Time, of consideration payable in respect of any tender or exchange offer by the Corporation or any such Subsidiary for all or any portion of the Common Stock consummated preceding the Offer Time and in respect of which no Conversion Price adjustment pursuant to this subsection (other than any reclassification upon a consolidation or merger to which Section 14.11 appliese) shall be deemed to involve (a) a distribution has been made, exceeds 7.5% of such securities other than the product of the Closing Price of the Common Stock to all holders of Common Stock (and at the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of Offer Time multiplied by the number of shares of Common Stock outstanding (including any tendered shares) at the Offer 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 such reclassification into the Offer Time by a fraction of which (x) the numerator shall be (i) the product of the Closing Price of the Common Stock at the Offer Time multiplied by the number of shares of Common Stock outstanding immediately thereafter (including any tendered shares) at the Offer Time minus (ii) 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 and not withdrawn as of the effective date of Offer Time (the shares deemed so accepted, up to any such reclassification maximum, being referred to as the "Tendered Shares") and (y) the denominator shall be deemed the product of (i) such Closing Price at the Offer Time multiplied by (ii) such number of outstanding shares at the Offer Time minus the number of Tendered Shares, such reduction to be “become effective immediately prior to the opening of business on the day upon which such subdivision becomes effective” or “following the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) Offer Time. For purposes of this Sectionsubsection (e), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Corporation but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7f) The Company Corporation may make such reductions in the conversion priceConversion Price, in addition to those required by paragraphs clauses (1a), (2b), (3c), (d) and or (4e) of this SectionSection B, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock or rights to purchase Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. In the event the Corporation elects to make such a reduction in the Conversion Price, the Corporation will comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities 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. Whenever the Conversion Price is reduced pursuant to the preceding sentence, the Corporation shall mail to the Holders of then-outstanding shares of Series A Preferred Stock 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.
(9g) No Whenever the Conversion Price is adjusted as herein provided, the Corporation shall promptly file at the principal office of the Corporation, or with an agent of the Corporation if one has been designated by the Board of Directors pursuant to Article VII.A(b) hereof, a certificate signed by a duly authorized officer of the Corporation, setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Promptly after delivery of such certificate, the Corporation shall prepare a notice of such adjustment of the Conversion Price setting forth the adjusted Conversion Price and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Price to each Holder at its last address appearing in the conversion price stock register within twenty (20) days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
(h) Notwithstanding anything herein to the contrary, no adjustment under this Article VII shall be required made to the Conversion Price unless such adjustment would require an increase or decrease of at least one-half of one percent (0.5%) of the Conversion Price then in such conversion price; provided, however, that any effect. Any lesser adjustment which by reason of this paragraph (9) is not required to be made shall be carried forward and taken into account in any shall be made at the time of and together with the next subsequent adjustment, if any, which, together with any adjustment or adjustments so carried forward, shall amount to an increase or decrease of at least one-half of one percent (0.5%) of such Conversion Price. No adjustment under this Article VII shall be made if such adjustment will result in a Conversion Price that is less than the par value of the Common Stock. All calculations under this Article Section B shall be made by the Corporation and shall be made to the nearest cent or to the nearest 1/10,000 one-ten thousandth (1/10,000) of a shareshare of Common Stock, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Securities Purchase Agreement (Loral Space & Communications Inc.)
Adjustment of Conversion Price. (1) In case at any time after the date of establishment of the Initial Conversion Price with respect to Securities of a series the Company shall pay or make a dividend or other distribution in shares of Common Stock on any class of capital stock of the Company in Common StockCompany, the conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1)paragraph, the number of shares of 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 Common StockCompany. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.. 80
(2) In case at any time after the date of establishment of the Initial Conversion Price with respect to Securities of a series the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date dated fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common StockCompany. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case at any time after the date of establishment of the Initial Conversion Price with respect to Securities of a series outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case at any time after the date of establishment of the Initial Conversion Price with respect to Securities of a series the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the retained earnings of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 15.02 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing prices for the five 30 consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not less than 30 nor more than 20 trading days before, and ending not later than, the earlier of 45 Business Days before the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distributionquestion. The closing price for each day shall be the last reported last sale sales price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case, on such date as reported in composite transactions for the principal national securities exchange on which the Common Stock is then are listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the National Association of Securities Dealers Automated Quotations National Market System or, if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or quoted on such National Market System, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors Company for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithpurpose.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish that any event treated for Federal income tax to any holders of shares of Common Stock resulting from any purposes as a dividend or distribution of stock or issuance of stock rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall not be final and conclusive.
(8) The Company may make such decreases taxable to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposesrecipients.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture (Associated Banc-Corp)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or sell to any Person shares of Common Stock or rights or warrants to all holders of its Common Stock entitling them such Person to subscribe for or purchase shares of Common Stock at a price per share less than the higher of the current market conversion price or the Current Market Price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (or, in the case of rights or warrants not exercisable until the occurrence of a contingent event other than pursuant the passage of time or other event that is certain to a dividend reinvestment planoccur, on the date that such contingent event occurs), the conversion price in effect at the opening of business on the day following the date fixed for such determination or the date such contingent event occurs, as the case may be, shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination or the date such contingent event occurs, as the case may be, plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at the higher of the current conversion price or such current market price Current Market Price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination or the date such contingent event occurs, as the case may be, plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options determination or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixedcontingent event occurs, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the retained earnings of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the lower of the current market conversion price or the Current Market Price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive supported by a fairness opinion by a nationally recognized investment banking firm and described in a Board Resolution filed with the TrusteeAgent) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be the lower of the current conversion price or such current market price Current Market Price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 8.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the "the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day date (the "Current Market Price") shall be deemed to be the average of the daily closing prices per share of the Company's Common Stock for the five 30 consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of immediately before the day in question and question; provided, however, that in the day before case of (i) a primary underwritten public offering at a price in excess of the “ex” date with respect then current conversion price, the Current Market Price shall be deemed the price to the issuance or distribution requiring such computation. For this purposeunderwriter set forth in the prospectus, and (ii) stock options issued to employees and directors pursuant to a plan adopted by the Company's Board of Directors, the term “ex” date, when used with respect to any issuance or distribution, Current Market Price shall mean be the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive exercise price of such issuance or distributionoptions. The closing price for each day shall be the last reported last sale price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, on such date as reported in composite transactions for the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, or stock market if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or stock market, the average of the closing bid and asked prices in the over-the-counter market as reported by NASDAQ or, if not quoted by NASDAQ on such day, as furnished by any New York Stock Exchange member firm registered broker/dealer selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithpurpose.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (31),(2),(3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish that any event treated for Federal income tax to any holders of shares of Common Stock resulting from any purposes as a dividend or distribution of stock or issuance of stock rights or warrants shall not be taxable to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusiverecipients.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent 1% in such the conversion price; provided, however, that any adjustment adjustments which by reason of this paragraph (9) is 8) 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 1/10,000 one-thousandth of a share, as the case may be.
(109) To The Company represents and warrants that upon (a) the extent permitted conversion in full of this Note and (b) the exercise in full of the option of Dynex Holding, Inc. ("Dynex") to purchase the shares of the Company's common stock under the Stock Option Agreement by applicable lawand between Dynex and Messrs. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, dated as of June 9, 1998, the combined shareholdings of Dynex Capital, Inc. and Dynex will be at least 66-2/3% of the shares of the Company's common stock on a fully-diluted basis. If such representation and warranty is breached, then the Company from time agrees to time may decrease adjust the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination so that such decrease combined holdings would be in the best interests of the Companyequal 66-2/3%, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed unless deemed unnecessary by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effectAgent.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Adjustment of Conversion Price. (1a) In case the Company Issuer shall pay or make a dividend or other distribution on any class of capital stock of the Company Issuer in Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company Issuer but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company Issuer will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the CompanyIssuer.
(2b) In case the Company Issuer shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6f) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2b), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company Issuer but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company Issuer will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the CompanyIssuer.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company Issuer shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2b) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the retained earnings of the Issuer and any dividend or distribution referred to in paragraph (1a) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6f) of this Section) of the Common Stock on the date fixed for such determination less determination, reduced by the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences evidence of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5e) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 13.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the be"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” ") within the meaning of paragraph (4d) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3c) of this Section).
(6f) For the purpose of any computation under paragraphs (2b) and (4d) of this Section, the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing market prices for the five ten consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors Issuer commencing not less than ten nor more than 20 trading days before, and ending not later than, the earlier of the day in question and the day 80 Business Days before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture (Murphy Oil Corp /De)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced so that the same shall equal the price determined by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares of Common Stock constituting such dividend or other distribution, such reduction to become effective immediately after at the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case at any time the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the then current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for such determination shall be reduced so that the same shall equal the price determined by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after at the opening of business on the day following the date fixed for such determination. If; provided, after -------- however, that if an adjustment to the Conversion Price is made and any such date fixed for such determination, any or all of ------- such rights, options or and warrants are not in fact issuedexercised, or are not exercised prior to then a corresponding reversing adjustment of the expiration thereof, the conversion price Conversion Price shall be immediately readjustedmade, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrantson an equitable basis, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or take account of such determination date had not been fixed, as the case may beevent. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after at the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rightsstock, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or (including securities, but excluding any (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cashcash out of the retained earnings of the Company, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in shares issued upon any merger or consolidation to which Section 14.11 1211 applies), 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 close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of DirectorsDirectors of the Company, whose determination shall be conclusive and described in a Company Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 1211 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” ," within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this SectionSection 1204, the current market price per share of Common Stock on any day date shall be calculated by the Company and be deemed to be the average of the daily closing prices Closing Prices Per Share for the five consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days 10 Trading Days before, and ending not later than, the earlier of the day in question and the day before the “ex” date "ex date" with respect to the issuance or distribution requiring such computation. For purposes of this purposeparagraph, the term “ex” "ex date, ," when used with respect to any issuance or distribution, shall mean means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) No adjustment in the Conversion Price shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (7)) would require an increase or decrease of at least one percent in such Conversion Price; provided, however, that any adjustments -------- ------- which by reason of this paragraph (7) 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-thousandth of a share, as the case may be.
(8) The Company may make such reductions in the conversion priceConversion Price, for the remaining term of any series of Securities or any shorter term, in addition to those required by paragraphs (1), (2), (3) and (4) of this SectionSection 1204, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture (Thermo Electron Corp)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies, 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.such
Appears in 1 contract
Sources: First Supplemental Indenture (Jefferies Group Inc /De/)
Adjustment of Conversion Price. (1a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.other
(2b) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6f) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2b), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.of
(4d) In case the Company shallCompany, by dividend or otherwise, shall distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2b) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the earned surplus of the Company and any dividend or distribution referred to in paragraph (1a) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall all be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. IfIf after the Distribution Date (the "Distribution Date"), after any as defined in __________________, dated as of __________________, between the Company and _______________________, as in effect on the date hereof (the "Rights Agreement"), converting Holders of the Securities are not entitled to receive the Rights, as defined in the Rights Agreement, which would otherwise be attributable (but for the date of conversion) to the shares of Common Stock received upon such date fixed for determinationconversion, any such distribution is not in fact made, then adjustment of the conversion price shall be immediately readjusted effective made under the preceding sentence as if the Rights were then being distributed to holders of the date that Company's Common Stock. If such an adjustment is made and the Board of Directors determines not to make such distributionRights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment shall be made to the conversion price price, on an equitable basis, to take account of such event. However, it is hereby agreed that would have been in effect if such determination date had not been fixed. In the event Company may elect to amend the then fair market value (as so determined) of provisions presently applicable to the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made Rights so that each Holder share of a Security shall have the right to receive Common Stock issuable upon conversion of the amount Securities, whether or not issued after the Distribution Date for such Rights, will be accompanied by the Rights which would otherwise be attributable (but for the date of conversion) to such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such dateCommon Stock, in which event the preceding two sentences will not apply.
(5e) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 1311 applies) shall be deemed to involve (aA) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (" and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section)."date
(6f) For the purpose of any computation under paragraphs (2b) and (4d) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e .i.e., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “"ex” " date with respect to the issuance or distribution distribution, requiring such computation. For this purpose, the term “"`ex” ' date, ," when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the National Association of Securities Dealers Automated Quotations National Market System or, if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or quoted on such National Market System, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithpurpose.
(7g) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1a), (2b), (3c) and (4d) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to in this section paragraph (g) and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9h) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.conversion
Appears in 1 contract
Sources: Subordinated Debt Securities Indenture (Noble Affiliates Inc)
Adjustment of Conversion Price. The Conversion Price shall be adjusted from time to time by the Company as follows:
(1a) In case the Company shall hereafter pay a dividend or make a dividend or other distribution on any class of capital stock to all holders of the Company outstanding Common Stock in shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day Business Day following the date fixed for the determination of stockholders shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction of which (i) the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date Record Date (as defined in Section 15.6(e)) fixed for such determination and (ii) the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction in the Conversion Price to become effective immediately after the opening of business on the day Business Day following the date fixed for such determinationRecord Date. If, after any such date fixed for determination, If any dividend or distribution of the type described in this Section 15.6(a) is declared but not in fact paidso paid or made, the conversion price Conversion Price shall again be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, adjusted to the conversion price that Conversion Price which would have been then be in effect if such determination date dividend or distribution had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Companydeclared.
(2b) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day Business Day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, and conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day Business Day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day Business Day following the day upon which such subdivision or combination becomes effective.
(4c) In case the Company shall issue rights or warrants to all or substantially all holders of its outstanding shares of Common Stock entitling them to subscribe for or purchase into shares of Common Stock at a price per share less than the Current Market Price (as defined in Section 15.6(e)) (other than rights or warrants subject to the third paragraph of Section 15.6(d)) on the Record Date fixed for the determination of shareholders entitled to receive such rights or warrants, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the Business Day after such Record Date by a fraction of which (i) the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date plus the number of shares that the aggregate offering price of the total number of shares so offered for subscription or purchase would purchase at such Current Market Price, and of which (ii) the denominator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the Record Date plus the total number of additional shares of Common Stock so offered for subscription or purchase. Such adjustment shall become effective immediately after the opening of business on the Business Day following the Record Date fixed for determination of shareholders entitled to receive such rights or warrants. To the extent that shares of Common Stock are not delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or warrants the Conversion Price shall be readjusted to the Conversion Price that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the Conversion Price shall again be adjusted to be the Conversion Price that would then be in effect if the Record Date for the determination of shareholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such Current Market Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received for such rights or warrants, the value of such consideration, if other than cash, to be determined in good faith by the Board of Directors.
(d) In case the Company shall, by dividend or otherwise, distribute to all or substantially all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock the Company (other than any rights, options dividends or warrants that by their terms will also be issued distributions to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Personwhich Section 15.6(a) applies) or evidences of its indebtedness or other property assets (including cash or assets or securities, but excluding (i1) any rights, options rights or warrants referred to in paragraph Section 15.6(c) and (2) of this Section, (ii) any dividend or distribution dividends and distributions paid exclusively in cash, (iii) any dividend or distribution referred which are subject to in the last paragraph (1) of this Section and 15.6(d), (ivthe foregoing hereinafter in this Section 15.6(d) called the "Additional Securities")), unless the Company elects to reserve such Additional Securities for distribution to the Noteholders upon conversion of the Notes so that any consideration distributed such holder converting Notes will receive upon such conversion, in any merger or consolidation addition to the shares of Common Stock to which Section 14.11 appliessuch holder is entitled, the conversion price amount and kind of such Additional Securities which such holder would have received if such holder had converted its Notes into Common Stock immediately prior to the Record Date (as defined in Section 15.6(e)) for such distribution of the Additional Securities then, in each such case, the Conversion Price shall be adjusted reduced so that the same shall be equal to the price determined by multiplying the conversion price Conversion Price in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled Record Date with respect to receive such distribution by a fraction of which (i) the numerator shall be the current market price per share Current Market Price (determined as provided in paragraph (6Section 15.6(e)) of this Section) of the Common Stock on the such date fixed for such determination less the then fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the TrusteeResolution) on such date of the portion of the assets, shares or evidences of indebtedness Additional Securities so distributed applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the Record Date) and (ii) the denominator shall be such current market price per share of the Common StockCurrent Market Price, such adjustment reduction to become effective immediately prior to the opening of business on the day Business Day following the date fixed for the determination of stockholders entitled to receive such distribution. IfRecord Date; provided, after any such date fixed for determinationhowever, any such distribution is not that in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property Additional Securities so distributed applicable to one share of Common Stock is equal to or greater than the current market price per share of Current Market Price on the Common Stock on such dateRecord Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security Noteholder shall have the right to receive upon conversion of a Note (or any portion thereof) the amount of such Common Stock, other capital stock, evidences of indebtedness, shares of any class of capital stock or indebtedness and other property assets that such Holder holder would have received had such Holder holder converted each Security on such date.
Note (5or portion thereof) The reclassification immediately prior to such Record Date and immediately thereafter received such Additional Securities. 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 15.6(d) by reference to the actual or when issued trading market for any securities comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the "Reference Period") used in computing the Current Market Price pursuant to Section 15.6(e) to the extent possible, unless the Board of Directors in a Board Resolution determines in good faith that determining the fair market value during the Reference Period would not be in the best interest of the Noteholders. In the event that the Company implements a new shareholder rights plan, such rights plan shall provide that upon conversion of the Notes the holders will receive, in addition to the Common Stock into securities other than issuable upon such conversion, the rights issued under such rights plan as if the holders had converted the Notes prior to implementing the rights plan and notwithstanding the occurrence of an event causing such rights to separate from the Common Stock (other than any reclassification upon at or prior to the time of conversion. Any distribution of rights or warrants pursuant to a consolidation or merger to which Section 14.11 applies) shareholder rights plan complying with the requirements set forth in the immediately preceding sentence of this paragraph shall be deemed to involve (a) not constitute a distribution of such securities other than Common Stock rights or warrants for the purposes of Section 15.6(c) or this Section 15.6(d). Rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company's capital stock (and either initially or under certain circumstances), which rights or warrants, until the effective date occurrence of such reclassification shall be a specified event or events ("Trigger Event"): (i) are deemed to be “the date fixed for the determination of stockholders entitled to receive transferred with such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.;
Appears in 1 contract
Sources: Indenture (Ats Medical Inc)
Adjustment of Conversion Price. (1) In case at any time after the date of establishment of the Initial Conversion Price with respect to Securities of a series the Company shall pay or make a dividend or other distribution in Common Shares on any class of capital stock of the Company in Common StockCompany, the conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock Shares outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1)paragraph, the number of shares of Common Stock Shares 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 Common StockCompany. The Company will not pay any dividend or make any distribution on shares of Common Stock Shares held in the treasury of the Company.
(2) In case at any time after the date of establishment of the Initial Conversion Price with respect to Securities of a series the Company shall issue rights, options rights or warrants to all holders of its Common Stock Shares entitling them to subscribe for or purchase shares of Common Stock Shares at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock Shares on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock Shares outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that Shares which the aggregate of the offering price of the total number of shares of Common Stock Shares so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock Shares outstanding at the close of business on the date dated fixed for such determination plus the number of shares of Common Stock Shares so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock Shares 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 Common StockCompany. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock Shares held in the treasury of the Company.
(3) In case at any time after the date of establishment of the Initial Conversion Price with respect to Securities of a series outstanding shares of Common Stock Shares shall be subdivided into a greater number of shares of Common StockShares, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock Shares shall each be combined into a smaller number of shares of Common Stock, Shares the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case at any time after the date of establishment of the Initial Conversion Price with respect to Securities of a series the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock Shares evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the retained earnings of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock Shares on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock Share and the denominator shall be such current market price per share of the Common Stock, Share such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock Shares into securities other than Common Stock Shares (other than any reclassification upon a consolidation or merger to which Section 14.11 15.02 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock Shares to all holders of Common Stock Shares (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock Shares outstanding immediately prior to such reclassification into the number of shares of Common Stock Shares outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock Share on any day date shall be deemed to be the average of the daily closing prices for the five 30 consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not less than 30 nor more than 20 trading days before, and ending not later than, the earlier of 45 Business Days before the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distributionquestion. The closing price for each day shall be the last reported last sale sales price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case, on such date as reported in composite transactions for the principal national securities exchange on which the Common Stock is then Shares are listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the National Association of Securities Dealers Automated Quotations National Market System or, if the Common Stock Share is not listed or admitted to trading on any national securities exchangeexchange or quoted on such National Market System, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors Company for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithpurpose.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish that any event treated for Federal income tax to any holders of shares of Common Stock resulting from any purposes as a dividend or distribution of stock or issuance of stock rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall not be final and conclusive.
(8) The Company may make such decreases taxable to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposesrecipients.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture (Liquid Media Group Ltd.)
Adjustment of Conversion Price. (1a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price Conversion Price in effect at the opening of business on the day Trading Day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction fraction, the numerator of which the numerator shall be the number of shares of Common Stock outstanding at the close of business the Trading Day on the date fixed for such determination and the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company Company, but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of fractional shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2b) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6f) of this Section) of the Common Stock on the date dated fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price Conversion Price in effect at the opening of business on the day Trading Day following the date fixed for such determination shall be reduced by multiplying such conversion price Conversion Price by a fraction fraction, the numerator of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day Trading Day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2b), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company Company, but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of fractional shares of Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day Trading Day following the day upon which such subdivision becomes effective shall be proportionately reduced, reduced and, conversely, in the case that outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock Indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2b) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the retained earnings of the Company and any dividend or distribution referred to in paragraph (1a) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction fraction, the numerator of which the numerator shall be the current market price per share (determined as provided in paragraph (6f) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness Indebtedness so distributed applicable to one share of Common Stock and the denominator of which shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5e) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger merger, to which Section 14.11 12.11 applies) shall be deemed to involve (ai) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4d) of this Section), ) and (bii) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”, ," as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3c) of this Section).
(6f) For the purpose of any computation under paragraphs (2b) and (4d) of this Section, the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days Trading Days before, and ending not later than, the earlier of the day in question and the day before the “"ex” " date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the last reported last sale sales price (regular way or, in case that no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the Nasdaq National Market or, if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or quoted on the Nasdaq National Market, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors Company for that purpose purpose. 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 Common Stock trades regular way on such exchange or in such market without the absence of any right to receive such quotations, as determined by the Board of Directors in good faithissuance or distribution.
(7g) The Company may make such reductions in the conversion priceConversion Price, in addition to those required by paragraphs (1a), (2b), (3c) and (4d) of this Section, as it considers to be advisable in order to avoid or diminish that any event treated for federal income tax to any holders of shares of Common Stock resulting from any purposes as a dividend or distribution of stock or issuance of stock rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall not be final and conclusive.
(8) The Company may make such decreases taxable to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposesrecipients.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the earned surplus of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 13.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e .i.e., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “‘ex” ’ date”, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such date as reported in composite transactions for Exchange, on the principal national securities exchange on which the Common Stock is then listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the Nasdaq Stock Market or, if the Common Stock is not listed or admitted to trading on any national securities exchangeexchange or quoted on the Nasdaq Stock Market, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithpurpose.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section paragraph (7) and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) 8) is 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 1/10,000 1/100 of a share, as the case may be.
(109) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(1110) There shall be no adjustment to the conversion price upon the issuance of preferred share purchase rights under the Company’s amended and restated rights agreement Rights Agreement dated as of February 19September 29, 19882005, as amendedmay be amended from time to time, or upon issuance of preferred share purchase rights or any other rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s applicable rights agreement separate from the underlying Common Stock, Stock such Holders shall be that holders of such Securities are not entitled to receive the such rights that would otherwise be attributable in addition to the shares of Common Stock received upon conversion and of such Securities, the Conversion Rate, in such case, will conversion price shall be adjusted as though such rights were being distributed to all holders of Common Stock on the date of such separation. If , as provided in paragraph (2) above, subject to readjustment in the event of the expiration, termination or redemption of such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basisrights.
Appears in 1 contract
Sources: Indenture (Payton Shipping Corp.)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price 6.1.1 The Conversion Price in effect at any date will be subject to adjustment from time to time in the opening of business on events and in the day following manner provided as follows.
6.1.2 If and whenever at any time after the date fixed hereof and prior to the Maturity Date, the Company:
(a) subdivides, redivides or changes its outstanding Common Shares into a greater number of Common Shares; or
(b) reduces, combines or consolidates its outstanding Common Shares into a smaller number of Common Shares;
(c) issues Common Shares or securities convertible into or exchangeable for determination Common Shares to the holders of stockholders entitled all or substantially all of the outstanding Common Shares as a stock dividend or otherwise (other than an issue of Common Shares or securities convertible into or exchangeable for Common Shares to holders of Common Shares pursuant to a right granted to such holders to receive such dividend Common Shares in lieu of Dividends Paid in the Ordinary Course);
(d) makes a distribution on its outstanding Common Shares to the holders of all or substantially all of the outstanding Common Shares payable in Common Shares or securities convertible into or exchangeable for Common Shares (other distribution 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 on the effective date of a Common Share Reorganization, so that the Conversion Price shall be reduced equal the price determined by multiplying the Conversion Price in effect immediately prior to such conversion price effective date by a fraction fraction, the numerator of which the numerator shall will be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting Common Shares outstanding on such dividend or other distribution, effective date before giving effect to such reduction to become effective Common Share Reorganization and the denominator of which will be the total number of Common Shares outstanding immediately after giving effect to such Common Share Reorganization (including, in the opening of business on the day following the date fixed case where securities exchangeable for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paidconvertible into Common Shares are distributed, the conversion price shall be immediately readjusted, effective as number of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price Common Shares that would have been in effect if outstanding had all such determination date had not securities been fixed. For the purposes of this paragraph (1exchanged for or converted into Common Shares on such effective date), the number of shares of Common Stock .
6.1.3 If and whenever at any time outstanding shall not include shares held in after the treasury of date hereof and prior to the Maturity Date, the Company but shall include shares issuable in respect fixes a record date for the issue of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all the holders of its all or substantially all of the outstanding Common Stock entitling them Shares under which such holders are entitled to subscribe for or purchase shares of during a period expiring not more than 45 days after the record date for such issue (the “Rights Period”) Common Stock Shares or securities exchangeable for or convertible into Common Shares at a price per share less than in United States Dollars to the current market holder (or at an exchange price or conversion price per share in the case of securities exchangeable for or convertible into Common Shares) which is less than 95% of the Current Market Price for the Common Shares on such record date (any of such events being called a “Rights Offering”), then the Conversion Price will be adjusted effective immediately after the end of the Rights Period so that it shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the end of the Rights Period by a fraction:
(a) the numerator of which will be the aggregate of:
(i) the total number of Common Shares outstanding as provided of the record date for the Rights Offering, and
(ii) a number determined by dividing (A) either (x) the product of the number of Common Shares issued or subscribed for upon the exercise of the rights, warrants or options under the Rights Offering and the price in paragraph United States Dollars at which such Common Shares are offered for such issue or subscription, or, as the case may be, (6y) the product of this Sectionthe 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 securities so offered pursuant to the Rights Offering could have been exchanged or converted during the Rights Period, by (B) the Current Market Price of the Common Stock on Shares as of the record date fixed for the determination of stockholders entitled to receive such rightsRights Offering, options or warrants and
(other than pursuant to a dividend reinvestment plan), b) the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction denominator of which the numerator shall will be the number of shares of Common Stock Shares outstanding at after giving effect to the close of business on the date fixed for such determination plus Rights Offering, including the number of shares of Common Stock that Shares actually issued or subscribed for during the aggregate Rights Period upon exercise of the offering price rights, warrants or options under the Rights Offering. 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 last day of the total Rights Period for the Rights Offering will, in addition to the Common Shares to which that holder would otherwise be entitled upon such conversion, be entitled to that number of shares additional Common Shares equal to the result obtained when (x) the difference, if any, between the Conversion Price in effect immediately prior to the end of Common Stock so offered the Rights Period for subscription or purchase would purchase at such current market price Rights Offering and the denominator shall be Conversion Price as adjusted for such Rights Offering pursuant to this subsection is multiplied by (y) the number of shares Common Shares received upon the conversion of Common Stock outstanding at the close of business on Debentures held by such Holder during such period, and the date fixed resulting product is divided by (z) the Conversion Price as adjusted for such determination plus Rights Offering pursuant to this subsection; provided that the number provisions of shares section 4.3 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 subsection. Such additional Common Stock so offered for subscription or purchase, such reduction Shares will be deemed to become effective have been issued to the Debentureholder immediately after the opening of business on the day following the date fixed end of the Rights Period and a certificate for such determinationadditional Common Shares will be delivered to such Holder within 15 Business Days following the end of the Rights Period. If, after any such date fixed for such determination, To the extent that any such rights, options or warrants are not in fact issued, so exercised on or are not exercised prior to before the expiration expiry thereof, the conversion price shall Conversion Price will be immediately readjusted, effective as readjusted to the Conversion Price which would then be in effect based on the number of the date such rights, options or warrants expire, Common Shares (or the date securities convertible into or exchangeable for Common Shares) actually delivered on the Board exercise of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock .
6.1.4 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 or the distribution to the holders of all or substantially all of the Company but shall include shares issuable in respect outstanding Common Shares of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury (i) securities of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or including rights, options or warrants to subscribe for or purchase shares acquire securities of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) of its property or other property (assets and including cash and evidences of indebtedness; or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend property or other assets, including cash and evidences of indebtedness, and if such issuance or distribution paid exclusively does not constitute a Dividend Paid in cashthe Ordinary Course, a Common Share Reorganization, a Rights Offering (iii) any dividend of such non-excluded events being called a “Special Distribution”), then the Conversion Price will be adjusted effective immediately after the date of such issuance or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies, the conversion price shall be adjusted so that the same it shall equal the price determined by multiplying the conversion price Conversion Price in effect immediately prior to on such issuance or distribution date by a fraction:
(a) the close numerator of business which will be:
(i) the product of the number of Common Shares outstanding on the date fixed for of such issuance or distribution and the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) Current Market Price of the Common Stock Shares on the date fixed for of such determination less issuance or distribution; less
(ii) the then fair market value (value, as determined by action by the Board of DirectorsDirectors (whose determination, whose determination shall subject to the consent of a Recognized Stock Exchange, will be conclusive and described conclusive), to the holders of Common Shares of such securities or property or other assets so issued or distributed in a Board Resolution filed with the TrusteeSpecial Distribution; and
(b) the denominator of which will be the product of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share number of Common Stock Shares outstanding on the date of such issuance or distribution and the denominator shall be such current market price per share Current Market Price of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security Shares on such date.
(5) The 6.1.5 If and whenever at any time after the date hereof and prior to the Maturity Date, there is a reclassification of the Common Stock Shares at any time outstanding or change of the Common Shares into other shares or into other securities or other than Common Stock capital reorganization (other than any reclassification upon a consolidation Common Share Reorganization), or a consolidation, amalgamation or merger to which Section 14.11 applies) shall be deemed to involve of, or an arrangement involving, the Company with or into any other corporation or other entity (a) a distribution of such securities other than Common Stock a vertical short-form amalgamation with one or more of its Wholly-Owned Subsidiaries pursuant to all Applicable Law), or a transfer of the undertaking or assets of the Company as an entirety or substantially as an entirety to another corporation or other entity in which the holders of Common Stock Shares are entitled to receive shares, other securities or other property (and any of such events being called a “Capital Reorganization”), any Holder of Debentures who exercises the right to convert Debentures into Common Shares after the effective date of such reclassification shall 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 which such holder would have been entitled to receive as a result of such Capital Reorganization if, on the effective date thereof, the holder had been the registered holder of the number of Common Shares to which such holder was previously entitled upon conversion provided, however, that the consideration into which the Debentures will be convertible will be limited to the Common Shares or other prescribed securities (as defined by section 6208 of the regulations to the Income Tax Act (Canada)) of the Company as specified by the Board of Directors of the Company. The Company will take all steps necessary to ensure that, on a Capital Reorganization, the Holders of Debentures will receive the aggregate number of shares, other securities or other property to which they are entitled as a result of the Capital Reorganization and that such shares or securities will be prescribed securities as defined in section 6208 of the regulations to the Income Tax Act (Canada), which includes shares or securities not redeemable by the holder thereof within 5 years from the issue date of the Debentures. Appropriate adjustments will be made in the application of the provisions set forth in this Article 6 as a result of any such Capital Reorganization with respect to the rights and interests thereafter of Holders of Debentures to the end that the provisions set forth in this Article 6 will thereafter correspondingly be made applicable as nearly as may reasonably be in relation to any shares, other securities or other property thereafter deliverable upon the conversion of any Debenture. Prior to or concurrent with effecting a Capital Reorganization, the Company will enter into an indenture supplemental hereto, or other appropriate document, approved by action of the Board of Directors and by the Indenture Trustee, which will set forth an appropriate adjustment to give effect to this subsection, in which event such adjustment will for all purposes be conclusively deemed to be an appropriate adjustment, subject to the prior written consent of the Recognized Stock Exchanges, if so required.
6.1.6 If the purchase price provided for in any rights, options or warrants (the “Rights Offering Price”) referred to in subsections 6.1.3 or 6.1.4 is decreased, the date fixed for Conversion Price will forthwith be changed so as to decrease the determination of stockholders entitled Conversion Price to receive such distribution” and “the date fixed for such determination” within Conversion Price that would have been obtained if the meaning of paragraph (4) of this Section), and (b) a subdivision adjustment to the Conversion Price made under subsection 6.1.3 or combination6.1.4, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to such rights, options or warrants had been made on the issuance or distribution requiring such computation. For basis of the Rights Offering Price as so decreased, provided that the terms of this purpose, the term “ex” date, when used with respect subsection will not apply to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or decrease in the applicable market without Rights Offering Price resulting from terms in any such rights, options or warrants designed to prevent dilution except to the right to receive such issuance or distribution. The closing price for each day shall extent that the resulting decrease in the Conversion Price under this subsection would be greater than the reported last sale price (ordecrease, if any, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers Conversion Price to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have made under the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) terms of this section as it considers by virtue of the occurrence of the event giving rise to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment decrease in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may beRights Offering Price.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be adjusted from time to time by the Company as follows; provided that the Company shall not make any adjustments to the Conversion Price if Holders (1as a result of holding the Securities, and at the same time as common stockholders participate) in any of the transactions described below as if such Holders held a number of shares of Common Stock equal to the, the principal amount of Securities held by such Holders divided by the then-applicable Conversion Price, without having to convert their Securities:
(a) In case the Company shall pay or make issue shares of Common Stock as a dividend or other distribution on any class of capital stock shares of the Company in Common Stock, or the conversion price in Company shall effect at a share split or share combination, the opening Conversion Price shall be multiplied by the following fraction: OS0/OS' where, OS0 = the number of shares of Common Stock that will be outstanding immediately prior to the close of business on the day following the record date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying as of the effective date of such conversion price by a fraction of which share split or combination, as the numerator shall be case may be; and OS' = the number of shares of Common Stock outstanding at as of the close record date for such dividend or distribution and immediately after giving effect to such dividend or distribution or immediately after the effective date of business such share split or combination, as the case may be. Any adjustment made pursuant to this subsection (a) shall become effective on the date fixed that is immediately after (x) the record date for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following or (y) the date fixed for on which such determinationsplit or combination becomes effective, as applicable. If, after any such date fixed for determination, If any dividend or distribution of the type described in this Section 12.04(a) is declared but not in fact paidpaid or made, the conversion price Conversion Price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, or split or combine the outstanding shares of Common Stock, as the case may be, to the conversion price Conversion Price that would have been then be in effect if such determination date dividend, distribution had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Companydeclared.
(2b) In case the Company shall issue rights, options distribute to all or warrants to substantially all holders of its Common Stock any rights or warrants (other than, as described below, rights distributed pursuant to a shareholder rights plan) entitling them for a period of not more than 45 days after the date of such distribution to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) average of this Section) Last Reported Sale Prices of the Common Stock on the date fixed for ten Trading Days immediately preceding the determination time of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan), the conversion price in effect at the opening announcement of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies, 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision Conversion Price shall be made so that each Holder of a Security shall have multiplied by the right to receive upon conversion the amount of such evidences of indebtednessfollowing fraction: (OS0 + Y) / (OS0 + X) where, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of OS0 = the number of shares of Common Stock outstanding immediately prior to the close of business on the record date for such reclassification distribution; X = the total number of shares of Common Stock issuable pursuant to such rights or warrants; and Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of public announcement for the issuance of such rights or warrants. For purposes of this subsection (b), in determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than such average of the Last Reported Sale Prices of the Common Stock, and in determining the aggregate exercise or conversion price of such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors. If any right or warrant described in this paragraph (b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Conversion Price shall be readjusted to the Conversion Price that would have been in effect if our right or warrant had not been issued.
(c) In case the Company shall distribute shares of any class of Capital Stock of the Company, evidences of its indebtedness or other assets or property of the Company to all or substantially all holders of Common Stock (but excluding dividends or distributions referred to in subsection (a) or (b) of this Section 12.04, dividends or distributions paid exclusively in cash referred to in subsection (d) of this Section 12.04, and distributions described below in this subsection (c) with respect to Spin-Offs) (any of such shares of Capital Stock, indebtedness, or other asset or property hereinafter in this subsection (c) called the “Distributed Property”), then, in each such case the Conversion Price shall be multiplied by the following fraction: (SP0 – FMV) / SP0 where, SP0 = the average of the Last Reported Sale Prices of Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Date for such distribution; and FMV = the fair market value of the shares of Capital Stock, evidences of indebtedness, assets or property distributed with respect to each outstanding share of Common Stock on the Ex-Dividend Date for such distribution, as determined by the Board of Directors. With respect to an adjustment pursuant to this subsection (c) where there has been a payment of a dividend or other distribution to the holders of the Common Stock in shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other Company business unit (a “Spin-Off”), the Conversion Price in effect immediately before 5:00 p.m., New York City time, on the 10th Trading Day immediately following, and including, the effective date of the Spin-Off shall be multiplied by the following fraction: MP0 / (FMV0 + MP0) where, FMV0 = the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of Common Stock applicable to one share of Common Stock over the first 10 consecutive Trading Day period immediately following the effective date of the Spin-Off; and MP0 = the average of the Last Reported Sale Prices of the Common Stock over the first 10 consecutive Trading Day period immediately following the effective date of the Spin-Off. Such adjustment shall occur on the 10th Trading Day from the effective date of the Spin-Off; provided that in respect of any conversion within the 10 Trading Days immediately following, and including, the effective date of any Spin-Off, references in this subsection (c) with respect to the Spin-Off to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the effective date of such Spin-Off and the Conversion Date in determining the applicable Conversion Price. If any such dividend or distribution described in this subsection (c) is declared but not paid or made, the Conversion Price shall be readjusted to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared.
(d) In case the Company shall pay any cash dividends or distributions to all or substantially all holders of its Common Stock, the Conversion Price shall be multiplied by the following fraction: (SP0 – C) / SP0 where, SP0 = the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Date for such distribution; C = the amount in cash per share the Company distributes to holders of Common Stock in such distribution. Such adjustment shall become effective immediately after the opening of business on the record date for such dividend or distribution. If any 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 the Company or any of its Subsidiaries make a payment in respect of a tender offer or exchange offer for Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the Last Reported Sale Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended), the Conversion Price shall be multiplied by the following fraction: (OS0 x SP') / (AC + (SP' x OS')) where, AC = the aggregate value of all cash and any other consideration as determined by the Board of Directors paid or payable for shares purchased in such tender or exchange offer; OS0 = the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect prior to the issuance date such tender or distribution requiring such computation. For this purpose, exchange offer expires; OS' = the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders number of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion outstanding immediately after the date such tender or exchange offer expires (after giving effect to such tender offer or exchange offer); and SP' = the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders Last Reported Sale Price of Common Stock on the Trading Day next succeeding the date such tender or exchange offer expires. Such adjustment shall become effective immediately after close of business on the Trading Day next succeeding the date such separation. If such an tender or exchange offer expires.
(f) No adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on Price shall be made if the application of any of the formulas set forth in this Section 12.04 (other than in connection with a share combination) would result in an equitable basisincrease in the Conversion Price.
Appears in 1 contract
Sources: Indenture (E Trade Financial Corp)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustments from time to time as follows:
(1a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1a), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2b) In Subject to 12.4(j), in case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6h) of this SectionSection 12.4) of the Common Stock on the record date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2b), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rightsstock, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities(including Notes, but excluding any (i) any rights, options or warrants referred to in paragraph (2b) of this SectionSection 12.4, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1a) of this Section 12.4 and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 12.11 applies), 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 close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6h) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If.
(e) In case the Company shall, after by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any such cash that is distributed upon a merger or consolidation to which Section 12.11 applies or as part of a distribution referred to in paragraph (d) of this Section 12.4) in an aggregate amount that, combined together with (i) the aggregate amount of any other distributions to all holders of its Common Stock made exclusively in cash within the 12 months preceding the date fixed for determination, any of payment of such distribution is not and in fact made, respect of which no adjustment pursuant to this paragraph (e) has been made and (ii) the conversion price shall be immediately readjusted effective as aggregate of any cash plus the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determineddetermined by the Board of Directors, whose determination shall be conclusive and shall be described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its Subsidiaries for all or any portion of the evidences Common Stock concluded within the 12 months preceding the date of indebtednesspayment of such distribution and in respect of which no adjustment pursuant to paragraph (f) of this Section 12.4 has been made, shares exceeds 15% of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution multiplied by the number of shares of Common Stock outstanding on such date, then, and in lieu each such case, immediately after the close of business on such date for determination, 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 date fixed for determination of the foregoing adjustment, adequate provision stockholders entitled to receive such distribution by a fraction (1) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (h) of this Section 12.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined amount over such 15% and (y) the number of shares of Common Stock outstanding on such date for determination and (2) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (h) of this Section 12.4) of the Common Stock on such date for determination.
(f) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance, up to any maximum specified in the terms of the tender offer, of Purchased Shares as defined below) of an aggregate consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and shall be described in a Board Resolution) that combined together with (i) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and shall be described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to this paragraph (f) has been made and (ii) the aggregate amount of any distributions to all holders of the Company's Common Stock made exclusively in cash within 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to paragraph (e) of this Section has been made, exceeds 15% of the current market price per share of the Common Stock (determined as provided in paragraph (h) of this Section 12.4) as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Price shall be adjusted so that each Holder the same shall equal the price determined by multiplying the Conversion Price immediately prior to close of business on the date of the Expiration Time by a Security fraction (1) the numerator of which shall have be equal to (x) the right to receive upon conversion product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (h) of this Section) on the date of the Expiration Time and (B) the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time less the amount of such evidences cash plus the fair market value (determined as aforesaid) of indebtednessthe aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares, and (2) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (h) of this Section) as of the Expiration Time and (B) the number of shares of Common Stock outstanding (including any class tendered shares) as of capital stock or other property the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such Holder would have received had such Holder converted each Security on such datemaximum, being referred to as the "Purchased Shares").
(5g) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 12.11 applies) shall be deemed to involve (ai) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4d) of this SectionSection 12.4), and (bii) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”, ," as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3c) of this SectionSection 12.4).
(6h) For the purpose of any computation under paragraphs (2b), (d), (e) and (4f) of this SectionSection 12.4, the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing prices Closing Prices for the five consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days before, and ending not later than, the earlier of ten Trading Days before the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithquestion.
(7i) The Company may make such reductions in the conversion priceConversion Price, in addition to those required by paragraphs (1a), (2b), (3c), (d), (e) and (4f) of this Section, as it considers to be advisable advisable, which determination shall be conclusive.
(j) Notwithstanding the foregoing, (i) if the options, rights or warrants described in order Section 12.4(b) above are exercisable only upon the occurrence of certain triggering events, then the conversion price will not be adjusted until such triggering events occur and (ii) if such options, rights or warrants expire unexercised, the conversion price will be readjusted to avoid take into account only the actual number of such options, rights or diminish warrants which were exercised. In addition, the provisions of Section 12.4(a), (b), (c), (d), (e) and (f) will not apply to the issuance of Common Stock or the issuance or exercise of options to purchase Common Stock under any income tax stock-based employee compensation plan now existing or hereafter adopted.
(k) In the event of a pro rata distribution to any holders of Common Stock of rights to subscribe for additional shares of Common Stock resulting from (other than those referred to in Section 12.4(b) above) or of evidences of indebtedness or assets as provided in Section 12.4(d) above, the Company may, instead of making any dividend adjustment in the Conversion Price, make proper provision so that each Holder of a Note who converts such Note (or a portion thereof) after the record date for such distribution and prior to the expiration or redemption of stock or issuance of such rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases entitled to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter termreceive upon conversion, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of the shares of Common Stock resulting from issuable upon conversion, an appropriate number of such rights, evidences of indebtedness or assets, as the case may be, as if such Holders had converted the Notes immediately before the Record Date for any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposesdistribution.
(9l) No adjustment in Notwithstanding any other provision of this Section 12.4, the conversion price Company shall not be required to make any adjustment of the Conversion Price unless such adjustment (together with any prior adjustments that were not made as a result of this clause (l)) would require an increase or decrease of at least one percent in 1% of such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may beConversion Price.
(10m) To the extent permitted by applicable lawNotwithstanding any other provision of this Section 12.4, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon Conversion Price shall reduce the issuance Conversion Price below the then par value per share of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, and any such Holders purported adjustment shall receive rights in addition 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 upon conversion or (ii) that would or does result in any adjustment in the Conversion Price that, if made without giving effect to the previous sentence, would cause the Conversion Price to be less than the then par value per share of the Common Stock; provided, that the covenant in this sentence shall be suspended if within 10 days of determining in good faith that such action would result in such adjustment (but not later than the Business Day following the effectiveness of such Securities. If Holders of adjustment), the Securities of Company gives a series that is convertible exercise notice under Section 11.3 and effects the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled redemption referred to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock notice on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made Redemption Date referred to the Conversion Rate on an equitable basistherein.
Appears in 1 contract
Sources: Indenture (Signature Resorts Inc)
Adjustment of Conversion Price. Subject to the requirements of the CSE (or such other exchange on which the Debentures are then listed), the Conversion Price in effect at any date shall be subject to adjustment from time to time as set forth below.
(a) If and whenever at any time prior to the Time of Expiry the Corporation shall (i) subdivide, redivide or change the outstanding Common Shares into a greater number of shares, (ii) reduce, combine or consolidate the outstanding Common Shares into a smaller number of shares, or (iii) issue Common Shares or securities convertible into Common Shares to the holders of all 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 this Indenture 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 record date by a fraction: (1) In the denominator of which shall be the number of 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 Company number of Common Shares that would have been outstanding had such securities been exchanged for or converted into Common Shares on such record date, assuming in any case where such securities are not then convertible or exchangeable but subsequently become 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 pay 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 this Section 4.5 shall occur. Any such issue of Common Shares or make securities convertible into Common Shares by way of a dividend or other distribution on any class of capital stock of the Company in Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for determination of stockholders entitled to receive such dividend or other distribution shall be reduced 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 (d) of this Section 4.5.
(b) If and whenever at any time prior to the Time of Expiry the Corporation shall fix 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, 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 conversion price record date by a fraction 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 number of shares Current Market Price per Common Share on such record date minus the amount in cash per Common Share distributed to holders of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator Shares. Such adjustment shall be made successively whenever such a record date is fixed. To the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after extent that any such date fixed for determination, any cash dividend or distribution is not in fact paid, the conversion price Conversion Price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, re- adjusted to the conversion price that Conversion Price which would have been then be in effect if such determination record date had not been fixed. For the purposes of this paragraph .
(1), the number of shares of Common Stock c) If and whenever at any time outstanding prior to the Time of Expiry the Corporation shall not include shares held in fix a record date for the treasury issuance of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rightsoptions, options rights or warrants to all or substantially all the holders of its outstanding Common Stock Shares entitling them them, for a period expiring not more than 45 days after such record date, to subscribe for or purchase shares of Common Stock Shares (or securities convertible into Common Shares) at a price per share (or having a conversion or exchange price per share) less than the current market price per share (determined as provided in paragraph (6) of this Section) 95% of the Current Market Price of a Common Stock Share on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant to a dividend reinvestment plan)record date, the conversion 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 at the opening of business on the day following the such record date fixed for such determination shall be reduced by multiplying such conversion price by a fraction fraction, of which the numerator shall be the total number of shares Common Shares outstanding on such record date plus a number of Common Stock outstanding at the close of business on the date fixed for such determination plus Shares equal to the number of shares of Common Stock that arrived at by dividing the aggregate of the offering price of the total number of shares of additional Common Stock so Shares offered for subscription or purchase would purchase at (or the aggregate conversion or exchange price of the convertible securities so offered) by such current market price Current Market Price per Common Share, and of which the denominator shall be the total number of shares of Common Stock Shares outstanding at the close of business on the such record date fixed for such determination plus the total number of shares of additional Common Stock so Shares offered for subscription or purchase, purchase (or into which the convertible securities so offered are convertible). Such adjustment shall be made successively whenever such reduction to become effective immediately after a record date is fixed. To the opening of business on the day following the date fixed for such determination. If, after extent that any such date fixed for such determinationoptions, any such rights, options rights or warrants are not in fact issuedso issued or any such options, rights or warrants are not exercised prior to the expiration thereof, the conversion price Conversion Price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, re-adjusted to the conversion price that Conversion Price which would have been then be in effect if the unexercised rights, options or warrants had never been granted or such determination record date had not been fixed, as fixed or to the case may be. For the purposes of this paragraph (2), Conversion Price which would then be in effect based upon the number of shares of Common Stock at any time outstanding shall not include shares held in Shares (or securities convertible into Common Shares) actually issued upon the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security exercise of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securitiesoptions, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies, 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent were included in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a sharefraction, as the case may be.
(10d) To the extent permitted by applicable law, the Company from If and whenever at any time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date Time of Expiry, there is a reclassification of the decreased conversion price takes effect.
(11Common Shares or a capital reorganization of the Corporation other than as described in Section 4.5(a) There shall be no adjustment to or a consolidation, amalgamation, arrangement, binding share exchange, merger of the conversion price upon Corporation with or into any other Person or other entity or acquisition of the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, Corporation or upon issuance of rights other combination pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from which the Common Stock. If Holders Shares are converted into or acquired for cash, securities or other property; or a sale or conveyance of the Securities 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 series that is convertible exercise the Debenture who has not exercised its right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion date of this Indenture of such Securities. If Holders reclassification, capital reorganization, consolidation, amalgamation, arrangement, merger, share exchange, acquisition, combination, sale or conveyance or liquidation, dissolution or winding-up, upon the exercise of the Securities of a series that is convertible exercise the such right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stockthereafter, such Holders shall be entitled to receive and shall accept, in lieu of the rights that would otherwise be attributable to the shares number of Common Stock received upon conversion and Shares then sought to be acquired by it, such amount of cash or the Conversion Ratenumber of shares or other securities or property of the Corporation or of the Person or other entity resulting from such merger, in amalgamation, arrangement, acquisition, combination or consolidation, or to which such case, will sale or conveyance may be adjusted as though such rights were being distributed to made or which holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.Common
Appears in 1 contract
Sources: Indenture
Adjustment of Conversion Price. The Conversion Price shall be adjusted from time to time by the Company as follows:
(1a) In case the Company shall hereafter pay a dividend or make a dividend or other distribution on any class of capital stock to all holders of the Company outstanding Common Stock in shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this Section 15.5(a) is declared but not so paid or made, the Conversion Price shall again be adjusted to the Conversion Price which would then be in effect if such dividend or distribution had not been declared.
(2b) In case the Company shall issue rights, options rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 days after the date fixed for determination of stockholders entitled to receive such rights or warrants) to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share Current Market Price (determined as provided in paragraph (6defined below) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the day following immediately prior to the date fixed for determination of stockholders entitled to receive such determination shall be reduced by multiplying such conversion price rights or warrants by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of stockholders entitled to receive such determination rights and warrants plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of stockholders entitled to receive such determination rights and warrants plus the total number of additional shares of Common Stock so offered for subscription or purchase. Such adjustment shall be successively made whenever any such rights and warrants are issued, such reduction to and shall become effective immediately after the opening of business on the day following the date fixed for determination of stockholders entitled to receive such determinationrights or warrants. If, after any such date fixed for such determination, any such rights, options or warrants To the extent that shares of Common Stock are not in fact issued, or are not exercised prior to delivered after the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options rights or warrants, the Conversion Price shall be readjusted to the conversion price that Conversion Price which would have been then be in effect if had the unexercised rights, options adjustments made upon the issuance of such rights or warrants had never been granted or such determination date had not been fixed, as made on the case may be. For the purposes basis of this paragraph (2), delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the Conversion Price shall again be adjusted to be 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. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at any time outstanding shall not include shares held less than such Current Market Price, and in determining the treasury aggregate offering price of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of such shares of Common Stock. The , there shall be taken into account any consideration received by the Company will not issue any rightsfor such rights or warrants, options or warrants in respect the value of shares such consideration, if other than cash, to be determined by the Board of Common Stock held in the treasury of the CompanyDirectors.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, and conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock of the Company (other than any dividends or rightsdistributions to which Section 15.5(a) applies) or evidences of its indebtedness or assets (including securities, options but excluding any rights or warrants referred to in Section 15.5(b), and excluding any dividend or distribution (x) in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, (y) paid exclusively in cash or (z) referred to in Section 15.5(a) (any of the foregoing hereinafter in this Section 15.5(d) called the "Securities")), then, in each such case (unless the Company elects to reserve such Securities for distribution to the Noteholders upon the conversion of the Notes so that any such holder converting Notes will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities which such holder would have received if such holder had converted its Notes into Common Stock immediately prior to the Record Date (as defined in Section 15.5(h) for such distribution of the Securities)), the Conversion Price shall be reduced so that the same shall be equal to the price determined by multiplying the Conversion Price in effect on the Record Date with respect to such distribution by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such Record Date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive, and described in a resolution of the Board of Directors) on the Record Date of the portion of the Securities so distributed applicable to one share of Common Stock and the denominator shall be the Current Market Price per share of the Common Stock, such reduction to become effective immediately prior to the opening of business on the day following such Record Date; PROVIDED, HOWEVER, that in the event the then fair market value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Noteholder shall have the right to receive upon conversion the amount of Securities 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 the Board of Directors determines the fair market value of any distribution for purposes of this Section 15.5(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock. The Company will promptly amend the Rights Agreement (in no event later than October 31, 1995) (the "Rights Agreement Amendment") to provide that, upon conversion of any Note or portion thereof, the Noteholder will receive, in addition to the Common Stock issuable upon such conversion, the Rights which would have attached to such shares of Common Stock if the Rights had not become separated from the Common Stock pursuant to the provisions of the Rights Agreement. In the event that the Company implements any new stockholders' rights plan (a "New Rights Agreement"), such New Rights Agreement shall provide that upon conversion of the Notes the holders will receive, in addition to the Common Stock issuable upon such conversion, the rights (whether or not such rights have separated from Common Stock at the time of the conversion) issuable pursuant to the New Rights Agreement. Rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase 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 be deemed not to have been distributed for purposes of this Section 15.5 (and no adjustment to the Conversion Price under this Section 15.5 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 15.5(d). 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 15.5 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 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 such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Price shall be readjusted as if such rights and warrants had not been issued. For purposes of this Section 15.5(d) and Sections 15.5(a) and (b), any dividend or distribution to which this Section 15.5(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of any class Common Stock (or both), shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets or shares of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without or rights or warrants (and any action Conversion Price reduction required by the Company this Section 15.5(d) with respect to such dividend or any other Persondistribution shall then be made) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Conversion Price reduction required by Sections 15.5(a) and (b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution" and "the date fixed for such determination" within the meaning of Sections 15.5(a) and (b) and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of Section 15.5(a).
(e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding (x) any quarterly cash dividend on the Common Stock to the extent the aggregate cash dividend per share of Common Stock in any fiscal quarter does not exceed the greater of (A) the amount per share of Common Stock of the next preceding quarterly cash dividend on the Common Stock to the extent that such preceding quarterly dividend did not require any adjustment of the Conversion Price pursuant to this SectionSection 15.5(e) (as adjusted to reflect subdivisions or combinations of the Common Stock), and (iiB) 3.75% of the arithmetic average of the Closing Price (determined as set forth in Section 15.5(h)) during the ten Trading Days (as defined in Section 15.5(h)) immediately prior to the date of declaration of such dividend, and (y) any dividend or distribution paid exclusively in cashconnection with the liquidation, (iii) any dividend dissolution or distribution referred to winding up of the Company, whether voluntary or involuntary), then, in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliessuch case, the conversion price Conversion Price shall be adjusted reduced so that the same shall equal the price determined by multiplying the conversion price Conversion Price in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution Record Date by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) Current Market Price of the Common Stock on the date fixed for such determination 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 such Current Market Price of the Common Stock, such reduction to be effective immediately prior to the opening of business on the day following the Record Date; PROVIDED, HOWEVER, that in the event the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Noteholder 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 15.5(e) as a result of a distribution that is a quarterly dividend, such adjustment shall be based upon the amount by which such distribution exceeds the amount of the quarterly cash dividend permitted to be excluded pursuant hereto. If an adjustment is required to be made as set forth in this Section 15.5(e) above as a result of a distribution that is not a quarterly dividend, such adjustment shall be based upon the full amount of the distribution.
(f) 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 filed with the Trustee) resolution of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective Board if Directors) that as of the date that last time (the Board of Directors determines not "Expiration Time") tenders or exchanges may be made pursuant to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value tender or exchange offer (as so determinedit may be amended) that exceeds the Current Market Price of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.Com
Appears in 1 contract
Adjustment of Conversion Price. (1) In case at any time after the date of establishment of the Initial Conversion Price with respect to Securities of a series the Company shall pay or make a dividend or other distribution in shares of Common Stock on any class of capital stock of the Company in Common StockCompany, the conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.or
(2) In case at any time after the date of establishment of the Initial Conversion Price with respect to Securities of a series the Company shall issue rights, options rights or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date dated fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common StockCompany. The Company will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case at any time after the date of establishment of the Initial Conversion Price with respect to Securities of a series outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In case at any time after the date of establishment of the Initial Conversion Price with respect to Securities of a series the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock indebtedness or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash out of the retained earnings of the Company and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliesSection), 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 date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares assets or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 1502 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing prices for the five 30 consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not less than 30 nor more than 20 trading days before, and ending not later than, the earlier of 45 Business Days before the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distributionquestion. The closing price for each day shall be the last reported last sale sales price (regular way or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) prices regular way, in either case on such date as reported in composite transactions for the principal national securities on which the Common New York Stock is then listed or admitted to trading Exchange or, if the 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, on the average National Association of Securities Dealers Automated Quotations National Market System or, if the closing bid and asked prices in the over-the-counter market as furnished by any New York Common Stock Exchange member firm selected from time to time by the Board of Directors for that purpose is not listed or in the absence of any such quotations, as determined by the Board of Directors in good faith.admitted to
(7) No adjustment in the 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 adjustment which by reason of this paragraph (7) is not required to be made shall be carried forward and taken into account in any subsequent adjustment; and provided, further that all such adjustments shall be made no later than the third anniversary of the earliest date on which an adjustment would have been made but for this paragraph (7) and all calculations under this paragraph (7) shall be made to the nearest cent.
(8) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish that any event treated for Federal income tax to any holders of shares of Common Stock resulting from any purposes as a dividend or distribution of stock or issuance of stock rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall not be final and conclusive.
(8) The Company may make such decreases taxable to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposesrecipients.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be adjusted from time to time by the Company as follows:
(1a) In case the Company shall hereafter pay a dividend or make a dividend or other distribution on any class of capital stock to all holders of the Company outstanding Common Stock in shares of Common Stock, the conversion Conversion Price shall be reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the day date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction fraction, the numerator of which the numerator shall be the number of shares of the Common Stock outstanding at the close of business on the date fixed for such determination determination, and the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes purpose of this paragraph (1a), the number of shares of 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 Common StockCompany. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this Section 15.05(a) is declared but not so paid or made, the Conversion Price shall again be adjusted to the Conversion Price that would then be in effect if such dividend or distribution had not been declared.
(2b) In case the Company shall issue rights, options rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within forty-five (45) days after the date fixed for determination of stockholders entitled to receive such rights or warrants) to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share Current Market Price (determined as provided in paragraph (6defined below) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the day following immediately prior to the date fixed for determination of stockholders entitled to receive such determination shall be reduced by multiplying such conversion price rights or warrants by a fraction fraction, the numerator of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of stockholders entitled to receive such determination rights or warrants plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price Current Market Price, and the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of stockholders entitled to receive such determination rights or warrants plus the total number of additional shares of Common Stock so offered for subscription or purchase. Such adjustment shall be successively made whenever any such rights or warrants are issued, such reduction to and shall become effective immediately after the opening of business on the day following the date fixed for determination of stockholders entitled to receive such determinationrights or warrants. If, after any such date fixed for such determination, any such rights, options or warrants To the extent that shares of Common Stock are not in fact issued, or are not exercised prior to delivered after the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options rights or warrants, the Conversion Price shall be readjusted to the conversion price Conversion Price that would have been then be in effect if had the unexercised rights, options adjustments made upon the issuance of such rights or warrants had never been granted or such determination date had not been fixed, as made on the case may be. For the purposes basis of this paragraph (2), delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or 77 warrants are not so issued, the Conversion Price shall again be adjusted to be the Conversion Price that 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. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at any time outstanding shall not include shares held less than such Current Market Price, and in determining the treasury aggregate offering price of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of such shares of Common Stock. The , there shall be taken into account any consideration received by the Company will not issue any rights, options for such rights or warrants in respect and any amount payable on exercise or conversion thereof, the value of shares such consideration, if other than cash, to be determined by the Board of Common Stock held in the treasury of the CompanyDirectors.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, and conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock of the Company (other than any dividends or rightsdistributions to which Section 15.05(a) applies) or evidences of its indebtedness or assets (including securities, options but excluding any rights or warrants referred to in Section 15.05(b), and excluding any dividend or distribution (x) paid exclusively in cash or (y) referred to in Section 15.05(a) (any of the foregoing hereinafter in this Section 15.05(d) called the "Securities")), then, in each such case (unless the Company elects to reserve such Securities for distribution to the Noteholders upon the conversion of the Notes so that any such holder converting Notes will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities which such holder would have received if such holder had converted its Notes into Common Stock immediately prior to the Record Date (as defined in Section 15.05(h)(4) for such distribution of the Securities)), the Conversion Price shall be reduced so that the same shall be equal to the price determined by multiplying the Conversion Price in effect on the Record Date with respect to such distribution by a fraction, the numerator of which shall be the Current Market Price per share of the Common Stock on such Record Date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive, and described in a resolution of the Board of Directors) on the Record Date of the portion of the Securities so distributed applicable to one share of Common Stock and the denominator of which shall be the Current Market Price per share of the Common Stock, such reduction to become effective immediately prior to the opening of business on the day following such Record Date; provided, however, that in the event the then fair market value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Noteholder shall have the right to receive upon conversion the amount of Securities 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 that 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 15.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock. Rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase 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 be deemed not to have been distributed for purposes of this Section 15.05 (and no adjustment to the Conversion Price under this Section 15.05 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 15.05(d). 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 15.05 was made, (1) in the case of any such rights or warrants that 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 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 such rights or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Price shall be readjusted as if such rights and warrants had not been issued. No adjustment of the Conversion Price shall be made pursuant to this Section 15.05(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to holders of Notes upon conversion by such holders of Notes to Common Stock. For purposes of this Section 15.05(d) and Sections 15.05(a) and (b), any dividend or distribution to which this Section 15.05(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of any class Common Stock (or both), shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets or shares of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without or rights or warrants (and any action Conversion Price reduction required by the Company this Section 15.05(d) with respect to such dividend or any other Persondistribution shall then be made) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Conversion Price reduction required by Sections 15.05(a) and (b) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution", "the date fixed for the determination of stockholders entitled to receive such rights or warrants" and "the date fixed for such determination" within the meaning of Sections 15.05(a) and (b), and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of Section 15.05(a).
(e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding (x) any quarterly cash dividend on the Common Stock to the extent the aggregate cash dividend per share of Common Stock in any fiscal quarter does not exceed the greater of (A) the amount per share of Common Stock of the next preceding quarterly cash dividend on the Common Stock to the extent that such preceding quarterly dividend did not require any adjustment of the Conversion Price pursuant to this SectionSection 15.05(e) (as adjusted to reflect subdivisions, or combinations of the Common Stock), and (iiB) 3.75% of the arithmetic average of the Closing Price (determined as set forth in Section 15.05(h)) during the ten Trading Days (as defined in Section 15.05(h)) 80 immediately prior to the date of declaration of such dividend, and (y) any dividend or distribution paid exclusively in cashconnection with the liquidation, (iii) any dividend dissolution or distribution referred to winding up of the Company, whether voluntary or involuntary), then, in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliessuch case, the conversion price Conversion Price shall be adjusted reduced so that the same shall equal the price determined by multiplying the conversion price Conversion Price in effect immediately prior to the close of business on the such record date fixed for the determination of stockholders entitled to receive such distribution by a fraction fraction, the numerator of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) Current Market Price of the Common Stock on the record date fixed for such determination less the amount of cash so distributed (and not excluded as provided above) applicable to one share of Common Stock, and the denominator of which shall be such Current Market Price of the Common Stock, such reduction to be effective immediately prior to the opening of business on the day following the record date; provided, however, that in the event the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Noteholder 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 that 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 15.05(e) as a result of a distribution that is a quarterly dividend, such adjustment shall be based upon the amount by which such distribution exceeds the amount of the quarterly cash dividend permitted to be excluded pursuant hereto. If an adjustment is required to be made as set forth in this Section 15.05(e) above as a result of a distribution that is not a quarterly dividend, such adjustment shall be based upon the full amount of the distribution.
(f) In case a tender or exchange offer made by the Company or any Subsidiary 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 filed with the Trustee) resolution of the portion Board of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective Directors) that as of the date that last time (the Board of Directors determines not "Expiration Time") tenders or exchanges may be made pursuant to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value tender or exchange offer (as so determinedit may be amended) of exceeds the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share Current Market Price of the Common Stock on such datethe Trading Day next succeeding the Expiration Time, in lieu of the foregoing adjustment, adequate provision Conversion Price shall be made reduced so that each Holder of a Security the same shall have equal the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with multiplying the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights Price in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.effect immediately pr
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be adjusted from time to time by the Issuers as follows:
(1a) In case the Company Parent shall hereafter pay a dividend or make a dividend or other distribution on any class of capital stock to all holders of the Company outstanding Common Stock in shares of Common Stock, the conversion Conversion Price shall be reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the day date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction fraction, the numerator of which the numerator shall be the number of shares of the Common Stock outstanding at the close of business on the date fixed for such determination determination, and the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, If any dividend or distribution of the type described in this Section 4.05(a) is declared but not in fact paidso paid or made, the conversion price Conversion Price shall again be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, adjusted to the conversion price Conversion Price that would have been then be in effect if such determination date dividend or distribution had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Companydeclared.
(2b) In case the Company Parent shall issue rights, options rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 days after the date fixed for determination of stockholders entitled to receive such rights or warrants) to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) of this Section) of the Common Stock Current Market Price on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the day following immediately prior to the date fixed for determination of stockholders entitled to receive such determination shall be reduced by multiplying such conversion price rights or warrants by a fraction fraction, the numerator of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of stockholders entitled to receive such determination rights or warrants plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price Current Market Price, and the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of stockholders entitled to receive such determination rights or warrants plus the total number of additional shares of Common Stock so offered for subscription or purchase. Such adjustment shall be successively made whenever any such rights or warrants are issued, such reduction to and shall become effective immediately after the opening of business on the day following the date fixed for determination of stockholders entitled to receive such determinationrights or warrants. If, after any such date fixed for such determination, any such rights, options or warrants To the extent that shares of Common Stock are not in fact issued, or are not exercised prior to delivered after the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options rights or warrants, the Conversion Price shall be readjusted to the conversion price Conversion Price that would have been then be in effect if had the unexercised rights, options adjustments made upon the issuance of such rights or warrants had never been granted or such determination date had not been fixed, as made on the case may be. For the purposes basis of this paragraph (2), delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the Conversion Price shall again be adjusted to be the Conversion Price that 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. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at any time outstanding shall not include shares held less than such Current Market Price, and in determining the treasury aggregate offering price of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of such shares of Common Stock. The Company will not issue , there shall be taken into account any rights, options consideration received by the Parent for such rights or warrants in respect and any amount payable on exercise or conversion thereof, the value of shares such consideration, if other than cash, to be determined by the Board of Common Stock held in the treasury Directors (including a majority of the Companydisinterested directors).
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, and conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company Parent shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock the Parent (other than any rights, options dividends or warrants that by their terms will also be issued distributions to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Personwhich Section 4.05(a) applies) or other property evidences of its indebtedness or assets (including cash or assets or securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2) of this SectionSection 4.05(b), (ii) and excluding any dividend or distribution (x) paid exclusively in cash, cash or (iiiy) any dividend or distribution referred to in paragraph Section 4.05(a) (1any of the foregoing hereinafter in this Section 4.05(d) called the "Securities")), then, in each such case (unless the Parent elects to reserve such Securities for distribution to the Holder upon the conversion of this Section and (iv) any consideration distributed Term Note so that the Holder will receive upon such conversion, in any merger or consolidation addition to the shares of Common Stock to which Section 14.11 appliesthe Holder is entitled, the conversion price amount and kind of such Securities which the Holder would have received if the Holder had converted this Term Note into Common Stock immediately prior to the Record Date for such distribution of the Securities), the Conversion Price shall be adjusted reduced so that the same shall be equal to the price determined by multiplying the conversion price Conversion Price in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled Record Date with respect to receive 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 in paragraph (6) of this Section) of the Common Stock on the date fixed for such determination Record Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive Directors (including a majority of the disinterested directors) and described in a resolution of the Board Resolution filed with of Directors) on the Trustee) Record Date of the portion of the assets, shares or evidences of indebtedness Securities so distributed applicable to one share of Common Stock and the denominator of which shall be such current market price the Current Market Price per share of the Common StockStock on such Record Date, such adjustment reduction to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. IfRecord Date; PROVIDED, after any such date fixed for determination, any such distribution is not that in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property Securities so distributed applicable to one share of Common Stock is equal to or greater than the current market price per share Current Market Price of the Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that the Holder receives at such time, or shall have the right to receive upon conversion, the amount of Securities the Holder would have received had the Holder converted this Term 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 that 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 4.05(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock. Rights or warrants distributed by the Parent to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Parent's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events (each a "TRIGGER EVENT"): (i) are deemed to be transferred with such shares of Common Stock, (ii) are not immediately exercisable and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 4.05 (and no adjustment to the Conversion Price under this Section 4.05 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 4.05(d). If any such right or warrant, including any such existing right or warrant distributed prior to the date of this Term Note, is subject to events, upon the occurrence of which such right or warrant becomes 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 4.05 was made, (i) in the case of any such rights or warrants that 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 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 (ii) in the case of such rights or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Price shall be readjusted as if such rights and warrants had not been issued. No adjustment of the Conversion Price shall be made pursuant to this Section 4.05(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed, or reserved by the Parent for distribution, to the Holder upon conversion by the Holder of this Term Note to Common Stock. For purposes of this Section 4.05(d) and Sections 4.05(a) and (b), any dividend or distribution to which this Section 4.05(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock (or both), shall be deemed instead to be (i) a dividend or distribution of the evidences of indebtedness, assets or shares of capital stock other than such shares of Common Stock or rights or warrants (and any Conversion Price reduction required by this Section 4.05(d) with respect to such dividend or distribution shall then be made) immediately followed by (ii) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Conversion Price reduction required by Sections 4.05(a) and (b) with respect to such dividend or distribution shall then be made), except (x) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution", "the date fixed for the determination of stockholders entitled to receive such rights or warrants" and "the date fixed for such determination" within the meaning of Sections 4.05(a) and (b), and (y) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of Section 4.05(a).
(e) In case the Parent shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding (i) any quarterly cash dividend on the Common Stock to the extent the aggregate cash dividend per share of Common Stock in any fiscal quarter does not exceed the greater of (x) the amount per share of Common Stock of the next preceding quarterly cash dividend on the Common Stock to the extent that such preceding quarterly dividend did not require any adjustment of the Conversion Price pursuant to this Section 4.05(e) (as adjusted to reflect subdivisions, or combinations of the Common Stock), and (y) 3.75% of the average of the Closing Prices per share of Common Stock for the ten Trading Days immediately prior to the date of declaration of such dividend, and (ii) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Parent, whether voluntary or involuntary), then, in such case, 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 close of business on such record date by a fraction, the numerator of which shall be the Current Market Price of the Common Stock on the 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 of which shall be such Current Market Price of the Common Stock, such reduction to be effective immediately prior to the opening of business on the day following the record date; PROVIDED, that in the event the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each the Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such cash the Holder would have received had such the Holder converted each Security this Term Note on the record date. In the event that such datedividend 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. If any adjustment is required to be made as set forth in this Section 4.05(e) as a result of a distribution that is a quarterly dividend, such adjustment shall be based upon the amount by which such distribution exceeds the amount of the quarterly cash dividend permitted to be excluded pursuant hereto. If an adjustment is required to be made as set forth in this Section 4.05(e) above as a result of a distribution that is not a quarterly dividend, such adjustment shall be based upon the full amount of the distribution.
(5f) The reclassification In case a tender or exchange offer made by the Parent or any Subsidiary of the Parent 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 into securities other than having a fair market value (as determined by the Board of Directors (including a majority of the disinterested directors), whose determination shall be conclusive and described in a resolution of the Board of Directors) 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 Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) on the Trading Day next succeeding the Expiration Time, the Conversion Price shall be deemed reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to involve (a) the Expiration Time by a distribution fraction the numerator of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification which shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into (including any tendered or exchanged shares) at the number of shares of Common Stock outstanding immediately thereafter (and Expiration Time multiplied by the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average Current Market Price of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to Trading Day next succeeding the Conversion Rate on an equitable basis.Expiration Time
Appears in 1 contract
Adjustment of Conversion Price. (1a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company Com- pany in shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distributiondis- tribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1a), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2b) In case the Company shall issue stock, rights, options or warrants to all holders of its shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6g) of this SectionSection 14.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such stock, rights, options or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for such determination determina- tion shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering subscription price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding out- standing at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any In the event that all of the shares of Common Stock subject to such rights, options or warrants are have not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date been issued when such rights, options or warrants expire, or then the date Conversion Price shall promptly be readjusted to the Board Conversion Price which would then be in effect had the adjustment upon the issuance of Directors determines not to issue any such rights, options or warrants been made on the basis of the actual number of shares of Common Stock issued upon the exercise of such rights or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2b), the number of shares of 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 Common Stock. The Company will antidilution provisions of this Section 14 shall not issue any rights, apply to grants of options or warrants in respect of shares of Common Stock held in the treasury of under the Company's Incentive Stock Plans.
(3c) In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stockshares, the conversion price Conver- sion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding out- standing shares of Common Stock shall each be combined into a smaller number of shares of Common Stockshares, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination combina- tion becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company shall, by dividend or otherwiseother- wise, distribute to all or substantially all holders of its shares of Common Stock evidences of its indebtedness, shares indebtedness or assets of any class of capital stock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets securities or securitiesother property, but excluding any (i) any rights, options or warrants referred to in paragraph (2b) of this Section, Section 14.4 and (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1a) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies14.4), the conversion price Conver- sion 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 close of business on the date day fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph para- graph (6g) of this SectionSection 14.4) of the Common Stock on the date fixed for such determination less the amount or then fair market value (as determined by the Board of Directors, Directors (whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the cash or portion of the assets, shares assets or evidences evi- dences of indebtedness so distributed applicable allocable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective effec- tive immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after .
(e) In case the Company shall issue or sell any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of Common Stock or securities convertible into or exercisable for Common Stock, in any class case for a consideration per share of capital stock or other property so distributed is equal to or greater Common Stock less than the current market price per share at the time of such issuance or sale, the Conversion Price shall be reduced by multiplying the Conversion Price in effect immediately prior to such issuance or sale by a fraction, (A) the numerator of which shall be (i) the number of shares of Common Stock outstanding on a fully diluted basis immediately prior to the transaction plus (ii) the number of additional shares of Common Stock on a fully diluted basis that would have been issued or sold in the transac- tion had the issuance or sale occurred at the current market price and (B) the denominator of which shall be the number of shares of Common Stock outstanding on a fully diluted basis immediately after such datetransaction. For purposes of this sub- paragraph (e) of this Section 14.4, in lieu the issuance or sale shall be deemed to occur on the earlier of (x) the date on which the Company shall enter into a binding contract for the issuance or sale of such shares of Common Stock or convertible securities and (y) the date of the foregoing adjustment, adequate provision actual issuance or sale of such securities. The issuance of Common Stock on conversion or exercise of con- vertible securities outstanding prior to the date hereof shall not give rise to any adjustment of the Conversion Price under this subparagraph (e) of this Section 14.4.
(f) In case the shares of Common Stock shall be made so that changed into the same or a different number of shares of any class or classes of stock, whether by capital reorganization, reclassification, or otherwise (other than a subdivision or combination of shares or a stock dividend described in paragraph (a) or paragraph (c) of this Section 14.4, or a consolidation, merger or sale of assets described in Section 14.10 hereof), then and in each Holder of a Security such event you shall have the right thereafter to receive upon conversion convert the Note into the kind and amount of such evidences of indebtedness, shares of any class of capital stock and other securities and property receivable upon such reorganiza- tion, reclassification or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all change, by holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding into which the Note might have been converted immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” reorganization, reclassifica- tion or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section)change.
(6g) For the purpose of any computation under paragraphs para- graphs (2b), (d) and (4e) of this SectionSection 14.4, the current market price per share of Common Stock on any day date shall be deemed to be the average of the daily closing prices Closing Prices for the five 15 consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 30 and not less than 20 trading days before, and ending not later than, the earlier of the day in question and the day Trading Days before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faithquestion.
(7h) No adjustment in the Conversion Price shall be re- quired unless such adjustment (plus any adjustments not previous- ly made by reason of this paragraph (h)) would require an in- crease or decrease of at least 1% in such price; provided, however, that any adjustments which by reason of this paragraph (h) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calcula- tions under this paragraph (h) shall be made to the nearest cent.
(i) The Company may may, but shall not be required to, make such reductions in the conversion priceConversion Price, in addition to those required by paragraphs (1a), (2b), (3c), (d) and (4e) of this SectionSection 14.4, as it the Company's Board of Directors considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase pur- chase or subscribe for stock or from any event treated as such for from income tax purposes or for any other reasons. The Company Company's Board of Directors shall have the power to resolve any ambiguity or correct any error in the adjustments made pursuant to this section Section 14.4 and its actions in so doing shall be final and conclusivecon- clusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9j) No adjustment in the conversion price shall Conversion Price need be required unless such adjustment would require an increase made for rights to purchase or decrease the sale of at least one percent in such conversion pricethe Common Stock pursuant to a Company plan providing for reinvestment of dividends or in- terest; provided, however, that any adjustment which by reason of this paragraph (9) is discount under such plan may 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests exceed 5% of the Company, which determination shall be conclusive. Whenever the conversion current market price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of and such Securities. If Holders of plan is registered under the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basisAct.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be adjusted from time to time by the Company as follows:
(1a) In case the Company shall hereafter pay a dividend or make a dividend or other distribution on any class of capital stock to all holders of the Company outstanding Common Stock in shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this Section 15.5(a) is declared but not so paid or made, the Conversion Price shall again be adjusted to the Conversion Price which would then be in effect if such dividend or distribution had not been declared.
(2b) In case the Company shall issue rights, options rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 days after the date fixed for determination of stockholders entitled to receive such rights or warrants) to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share Current Market Price (determined as provided in paragraph (6defined below) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants (other than pursuant to a dividend reinvestment plan)warrants, the conversion Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the day following immediately prior to the date fixed for determination of stockholders entitled to receive such determination shall be reduced by multiplying such conversion price rights or warrants by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of stockholders entitled to receive such determination rights and warrants plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of stockholders entitled to receive such determination rights and warrants plus the total number of additional shares of Common Stock so offered for subscription or purchase. Such adjustment shall be successively made whenever any such rights and warrants are issued, such reduction to and shall become effective immediately after the opening of business on the day following the date fixed for determination of stockholders entitled to receive such determinationrights or warrants. If, after any such date fixed for such determination, any such rights, options or warrants To the extent that shares of Common Stock are not in fact issued, or are not exercised prior to delivered after the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options rights or warrants, the Conversion Price shall be readjusted to the conversion price that Conversion Price which would have been then be in effect if had the unexercised rights, options adjustments made upon the issuance of such rights or warrants had never been granted or such determination date had not been fixed, as made on the case may be. For the purposes basis of this paragraph (2), delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the Conversion Price shall again be adjusted to be 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. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at any time outstanding shall not include shares held less than such Current Market Price, and in determining the treasury aggregate offering price of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of such shares of Common Stock. The , there shall be taken into account any consideration received by the Company will not issue any rightsfor such rights or warrants, options or warrants in respect the value of shares such consideration, if other than cash, to be determined by the Board of Common Stock held in the treasury of the CompanyDirectors.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, and conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock of the Company (other than any dividends or rightsdistributions to which Section 15.5(a) applies) or evidences of its indebtedness or assets (including securities, options but excluding any rights or warrants referred to in Section 15.5(b), and excluding any dividend or distribution (x) in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, (y) paid exclusively in cash or (z) referred to in Section 15.5(a) (any of the foregoing hereinafter in this Section 15.5(d) called the "Securities")), then, in each such case (unless the Company elects to reserve such Securities for distribution to the Noteholders upon the conversion of the Notes so that any such holder converting Notes will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Securities which such holder would have received if such holder had converted its Notes into Common Stock immediately prior to the Record Date (as defined in Section 15.5(h) for such distribution of the Securities)), the Conversion Price shall be reduced so that the same shall be equal to the price determined by multiplying the Conversion Price in effect at the close of business on the Record Date with respect to such distribution by a fraction of which the numerator shall be the Current Market Price per share of the Common Stock on such Record Date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive, and described in a resolution of the Board of Directors) on the Record Date of the portion of the Securities so distributed applicable to one share of Common Stock and the denominator shall be the Current Market Price per share of the Common Stock, such reduction to become effective immediately prior to the opening of business on the day following such Record Date; PROVIDED, HOWEVER, that in the event the then fair market value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Noteholder shall have the right to receive upon conversion the amount of Securities 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 the Board of Directors determines the fair market value of any distribution for purposes of this Section 15.5(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock. Each share of Common Stock issued upon conversion of Notes pursuant to this Article XV shall be entitled to receive the appropriate number of Rights, and the certificates representing the Common Stock issued upon such conversion shall bear such legends, in each case as provided by and subject to the terms of the Rights Plan as in effect at the time of such conversion (whether or not such Rights have separated from the Common Stock at the time of conversion). In the event that the Company implements any new stockholders' rights plan, as amended, supplemented or modified from time to time (a "New Rights Plan"), such New Rights Plan shall provide that upon conversion of the Notes the holders will receive, in addition to the Common Stock issuable upon such conversion, the rights (whether or not such rights have separated from Common Stock at the time of the conversion) issuable pursuant to the New Rights Plan. Rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of any class of the Company's capital stock (other than any rightseither initially or under certain circumstances), options which rights or warrants that by their terms will also be issued to any Holder upon conversion warrants, until the occurrence of a Security of specified event or events ("Trigger Event"): (i) are deemed to be transferred with such series into shares of Common Stock Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 15.5 (and no adjustment to the Conversion Price under this Section 15.5 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 15.5(d). 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 action required by of the Company holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any other Person) Trigger Event or other property event (including cash or assets or securitiesof 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 15.5 was made, but excluding (i1) in the case of any rights, options such rights or warrants referred 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 in paragraph give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights 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 such rights or warrants which shall have expired or been terminated without exercise by any holders thereof, the Conversion Price shall be readjusted as if such rights and warrants had not been issued.
(e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding (x) any quarterly cash dividend on the Common Stock to the extent the aggregate cash dividend per share of Common Stock in any fiscal quarter does not exceed the greater of (A) the amount per share of Common Stock of the next preceding quarterly cash dividend on the Common Stock to the extent that such preceding quarterly dividend did not require any adjustment of the Conversion Price pursuant to this SectionSection 15.5(e) (as adjusted to reflect subdivisions or combinations of the Common Stock), and (iiB) 3.75% of the arithmetic average of the Closing Prices (determined as set forth in Section 15.5(h)) during the ten consecutive Trading Days (as defined in Section 15.5(h)) immediately prior to the date of declaration of such dividend, and (y) any dividend or distribution paid exclusively in cashconnection with the liquidation, (iii) any dividend dissolution or distribution referred to winding up of the Company, whether voluntary or involuntary), then, in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 appliessuch case, the conversion price Conversion Price shall be adjusted reduced so that the same shall equal the price determined by multiplying the conversion price Conversion Price in effect immediately prior to the close of business on the date fixed Record Date for the determination of stockholders entitled to receive such dividend or distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) of this Section) Current Market Price of the Common Stock on the date fixed for such determination Record Date less the then amount of cash so distributed (and not excluded as provided above) applicable to one share of Common Stock and the denominator shall be such Current Market Price of the Common Stock, such reduction to be effective immediately prior to the opening of business on the day following the Record Date; PROVIDED, HOWEVER, that in the event the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Noteholder 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
(f) 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 filed with the Trustee) resolution of the portion Board of Directors) that, as of the assetslast 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 Common Stock 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 Expiration Time by a fraction of which the numerator shall be the number of shares or evidences of indebtedness so distributed applicable to one share of Common Stock outstanding (including any tendered or exchanged shares) on the Expiration Time multiplied by the Current Market Price of the Common Stock 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 shareholders 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 current market price per share maximum, being referred to as the "Purchased Shares") and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) on the Expiration Time and the Current Market Price of the Common StockStock on the Trading Day next succeeding the Expiration Time, such adjustment reduction to become effective immediately prior to the opening of business on the day following the date fixed for Expiration Time. In the determination of stockholders entitled event that the Company is obligated to receive such distribution. If, after purchase shares pursuant to any such date fixed for determinationtender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such distribution is not in fact madepurchases or all such purchases are rescinded, the conversion price Conversion Price shall again be immediately readjusted effective as of adjusted to be the date that the Board of Directors determines not to make such distribution, to the conversion price that Conversion Price which would have been then be in effect if such determination date tender or exchange offer had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such datemade.
(5g) The reclassification In case of a tender or exchange offer made by a person other than the Company or any subsidiary of the Company for an amount which increases the offeror's ownership of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “the date fixed for the determination of stockholders entitled to receive such distribution” and “the date fixed for such determination” within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs (2) and (4) of this Section, the current market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days (i.e ., Business Days on which the Common Stock is traded) selected by the Board of Directors commencing not more than 20 trading days before, and ending not later than, the earlier of the day in question and the day before the “ex” date with respect to the issuance or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to any issuance or distribution, shall mean the first date on which the Common Stock trades regular way on the applicable exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (4) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture (Iomega Corp)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustments from time to time as follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of 101 Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price Conversion Price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price Conversion Price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (6) 8) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants (other than pursuant any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a dividend reinvestment planSecurity into shares of Common Stock without any action required by the Company or any other Person), the conversion price Conversion Price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price Conversion Price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price Conversion Price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision sub division or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock or rightsstock, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 12.11 applies), the conversion price Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying dividing the conversion price Conversion Price in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (6) 8) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price Conversion Price shall be immediately readjusted readjusted, effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price Conversion Price that would have been in effect if such determination date had not been fixed. .
(5) In case the event Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which Section 12.11 applies or as part of a distribution referred to in paragraph (4) of this Section) in an aggregate amount that, combined together with (I) the then aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate of any cash plus the fair market value (as so determineddetermined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender offer by the Company or any of its subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section 12.4 has been made (the 103 "combined cash and tender amount") exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Price shall be adjusted so that the same shall equal the price determined by dividing the Conversion Price in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on such date for determination.
(6) In case a tender offer made by the Company or any Subsidiary for all or any portion of the evidences Common Stock shall expire and such tender offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of indebtednessthe tender offer) of Purchased Shares (as defined below)) of an aggregate consideration having a fair market value (as determined by the Board of Directors, shares whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) the 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 expiration of such tender offer, of consideration payable in respect of any class other tender offer by the Company or any Subsidiary for all or any portion of capital stock or other property so distributed is equal the Common Stock expiring within the 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to or greater than this paragraph (6) has been made and (II) the aggregate amount of any cash distributions to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.5% of the product of the current market price per share of the Common Stock on such date, (determined as provided in lieu paragraph (8) of this Section 12.4) as of the foregoing adjustmentlast time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time, adequate provision then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Price shall be made adjusted so that each Holder the same shall equal the price determined by dividing the Conversion Price immediately prior to close of business on the date of the Expiration Time by a Security fraction (i) the numerator of which shall have be equal to (A) the right to receive upon conversion product of (I) the amount current market price per share of such evidences the Common Stock (determined as provided in paragraph (8) of indebtedness, this Section 12.4) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any class tendered shares) on the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of capital stock or other property which shall be 104 equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 12.4) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such Holder would have received had such Holder converted each Security on such datemaximum, being referred to as the "Purchased Shares").
(57) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” " and “"the date fixed for such determination” " within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “"the day upon which such subdivision becomes effective” " or “"the day upon which such combination becomes effective”", as the case may be, and “"the day upon which such subdivision or combination becomes effective” " within the meaning of paragraph (3) of this SectionSection 12.4).
(6) 8) For the purpose of any computation under paragraphs (2) and ), (4), (5) or (6) of this SectionSection 12.4, the current market price per share of Common Stock on any day date shall be calculated by the Company and be deemed to be the average of the daily closing prices Closing Prices Per Share for the five consecutive trading days (i.e ., Business Trading Days on which the Common Stock is traded) selected by the Board of Directors Company commencing not more than 20 trading days 10 Trading Days before, and ending not later than, the earlier of the day in question and the day before the “"ex” " date with respect to the issuance or distribution requiring such computation. For purposes of this purposeparagraph, the term “"'ex” ' date", when used with respect to any issuance or distribution, shall mean means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange or in the applicable market without the right to receive such issuance or distribution. The closing price for each day shall be the reported last sale price (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(79) No adjustment in the Conversion Price shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) 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.
(10) The Company may make such reductions in the conversion priceConversion Price, for the remaining term of the Securities or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (46) of this SectionSection 12.4, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from 105 any event treated as such for income tax purposes or for any other reasonspurposes. The Company shall have the power to resolve any ambiguity or correct any error pursuant to in this section paragraph (10) and its actions in so doing shall shall, absent manifest error, be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.
Appears in 1 contract
Sources: Indenture (DSC Communications Corp)
Adjustment of Conversion Price. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company its Common Stock exclusively in Common Stock, the conversion price in effect at the opening of business on the day next following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such reduction to become effective immediately after the opening of business on the day next following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the conversion price shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the conversion price that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of 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 Common Stock. The Company will shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall pay or make a dividend or other distribution on its Common Stock consisting exclusively of, or shall otherwise issue rights, options or warrants to all holders of its Common Stock Stock, rights, warrants or options entitling them the holders thereof, for a period not exceeding 45 days, to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (67) of this SectionSection 4.04) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options warrants or warrants (other than pursuant to a dividend reinvestment plan)options, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for such determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the conversion price shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue any such rights, options or warrants, to the conversion price that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of 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 Common Stock. The Company will shall not issue any rights, warrants or options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) In Subject to the last sentence of this paragraph (4), in case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock stock, securities, cash or rights, options or warrants to subscribe for or purchase shares of any class of capital stock property (other than excluding any rights, warrants or options or warrants that by their terms will also be issued to any Holder upon conversion of a Security of such series into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SectionSection 4.04, (ii) any dividend or distribution paid exclusively in cash, (iii) cash and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any consideration distributed in any merger or consolidation to which Section 14.11 applies4.04), the conversion price shall be adjusted reduced so that the same shall equal the price determined by multiplying the conversion price in effect immediately prior to the close effectiveness of business on the date fixed for the determination of stockholders entitled to receive such distribution conversion price reduction contemplated by this paragraph (4) by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (67) of this SectionSection 4.04) of the Common Stock on the date fixed for of such determination effectiveness less the then fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with and shall, in the Trustee) case of securities being distributed for which prior thereto there is an actual or when issued trading market, be no less than the value determined by reference to the average of the Closing Prices in such market over the period specified in the succeeding sentence), on the date of such effectiveness, of the portion of the assetsevidences of indebtedness, shares or evidences of indebtedness capital stock, securities, cash and property so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment reduction to become effective immediately prior to the opening of business on the day next following the later of (a) the date fixed for the payment of such distribution and (b) the date 20 days after the notice relating to such distribution is given pursuant to Section 4.06(a) (such later date of (a) and (b) being referred to as the "Reference Date"). If the Board of Directors determines the fair market value of any distribution for purposes of this paragraph (4) 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 pursuant to paragraph (7) of this Section. For purposes of this paragraph (4), any dividend or distribution that includes shares of Common Stock or rights, warrants or options to subscribe for or purchase shares of Common Stock shall be deemed instead to be (a) a dividend or distribution of the evidences of indebtedness, cash, property, shares of capital stock or securities other than such shares of Common Stock or such rights, warrants or options (making any conversion price reduction required by this paragraph (4)) immediately followed by (b) a dividend or distribution of such shares of Common Stock or such rights (making any further conversion price reduction required by paragraph (1) or (2) of this Section 4.04, except (i) the Reference Date of such dividend or distribution as defined in this paragraph (4) shall be substituted as "the date fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the conversion price shall be immediately readjusted effective as of the date that the Board of Directors determines not to make such distribution, to the conversion price that would have been in effect if such determination date had not been fixed. In the event the then fair market value (as so determined) of the portion of the evidences of indebtedness, shares of any class of capital stock dividend or other property so distributed is equal to or greater than the current market price per share of the Common Stock on such datedistributions", in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder of a Security shall have the right to receive upon conversion the amount of such evidences of indebtedness, shares of any class of capital stock or other property such Holder would have received had such Holder converted each Security on such date.
(5) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be “"the date fixed for the determination of stockholders entitled to receive such distribution” rights, warrants or options" and “"the date fixed for such determination” " within the meaning of paragraphs (1) and (2) of this Section 4.04 and (ii) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of paragraph (41) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be “the day upon which such subdivision becomes effective” or “the day upon which such combination becomes effective”, as the case may be, and “the day upon which such subdivision or combination becomes effective” within the meaning of paragraph (3) of this SectionSection 4.04).
(65) For In case the purpose Company shall, by dividend or otherwise, make a distribution to all holders of its Common Stock exclusively in cash in an aggregate amount that, together with (i) the aggregate amount of any computation under paragraphs other distributions to all holders of its Common Stock made exclusively in cash within the 12 months preceding the date of payment of such distribution and in respect of which no conversion price adjustment pursuant to this paragraph (25) has been made and (4ii) the aggregate of this Section, any cash plus the current fair market price per share of Common Stock on any day shall be deemed to be the average of the daily closing prices for the five consecutive trading days value (i.e ., Business Days on which the Common Stock is traded) selected as determined in good faith by the Board of Directors commencing not more than 20 trading days beforeDirectors, whose determination shall be conclusive and ending not later thandescribed in a Board Resolution), the earlier as of the day expiration of the tender or exchange offer referred to below, of consideration payable in question and respect of any tender or exchange offer by the day before the “ex” date with respect to the issuance Company or distribution requiring such computation. For this purpose, the term “ex” date, when used with respect to a Subsidiary for all or any issuance or distribution, shall mean the first date on which portion of the Common Stock trades regular way on concluded within the applicable exchange or 12 months preceding the date of payment of such distribution and in the applicable market without the right respect of which no conversion price adjustment pursuant to receive such issuance or distribution. The closing price for each day shall be the reported last sale price paragraph (or, in case no such reported sale takes place on such day, the average of the reported closing bid and asked prices) on such date as reported in composite transactions for the principal national securities on which the Common Stock is then listed or admitted to trading or, if the Common Stock is not listed or admitted to trading on any national securities exchange, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose or in the absence of any such quotations, as determined by the Board of Directors in good faith.
(7) The Company may make such reductions in the conversion price, in addition to those required by paragraphs (1), (2), (3) and (46) of this SectionSection 4.04 has been made, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error pursuant to this section and its actions in so doing shall be final and conclusive.
(8) The Company may make such decreases to the conversion price, for the remaining term of the securities of a series that is convertible or any shorter term, in addition to those required by paragraphs (1), (2), (3), and (4) of this section as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(9) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least one percent in such conversion price; provided, however, that any adjustment which by reason of this paragraph (9) is 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 1/10,000 of a share, as the case may be.
(10) To the extent permitted by applicable law, the Company from time to time may decrease the conversion price by any amount for any period of time of at least twenty (20) days, the decrease being irrevocable during such period, provided the Board of Directors shall have made a determination that such decrease would be in the best interests of the Company, which determination shall be conclusive. Whenever the conversion price is decreased pursuant to the preceding sentence, the Company shall prepare a certificate signed by the Treasurer or other appropriate officer of the Company stating the decreased conversion price and the period during which it will be in effect, and such certificate shall be filed with the Trustee and with the Conversion Agent at such office or agency maintained for the purpose of conversion of securities pursuant to Section 10.02 at least fifteen (15) days prior to the date the decreased conversion price takes effect.
(11) There shall be no adjustment to the conversion price upon the issuance of rights under the Company’s amended and restated rights agreement dated as of February 19, 1988, as amended, or upon issuance of rights pursuant to a rights agreement hereafter adopted that is an amendment, renewal or replacement thereof, prior to such rights being separated from the Common Stock. If Holders of the Securities of a series that is convertible exercise the right of conversion prior to the rights trading separately from the Common Stock, such Holders shall receive rights in addition to the Common Stock upon conversion of such Securities. If Holders of the Securities of a series that is convertible exercise the right of conversion after the date the rights issued under the Company’s rights agreement separate from the underlying Common Stock, such Holders shall be entitled to receive the rights that would otherwise be attributable to the shares of Common Stock received upon conversion and the Conversion Rate, in such case, will be adjusted as though such rights were being distributed to holders of Common Stock on the date of such separation. If such an adjustment is made and such rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the Conversion Rate on an equitable basis.exceeds
Appears in 1 contract