Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows: (a) In case the Company shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or (4) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In case the Company shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. (c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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. (d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date. (f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
Appears in 3 contracts
Sources: Indenture (Talk America), Indenture (Talk America), Indenture (Talk America)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or (4) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 14075.06, 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
Appears in 3 contracts
Sources: Indenture (Sabratek Corp), Indenture (Tel Save Holdings Inc), Indenture (Tel Save Holdings Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a1) In case the Company shall hereafter (1i) pay a dividend in shares of Common Stock to holders or make a distribution on its Common Stock in shares of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3ii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or shares, (4iii) combine its outstanding shares of Common Stock into a smaller number of shares or (iv) issue by reclassification of its Common StockStock any shares of capital stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of any Security Bond thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other capital stock of the Company which he or she would have owned immediately following such action had such Securities Bond been converted immediately prior thereto. Any An adjustment made pursuant to this subsection Subsection (a1) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combination.
reclassification. If, as a result of an adjustment made pursuant to this Subsection (b) In case 1), the Company Holder of any Bond thereafter surrendered for conversion shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock become entitled to receive such rights shares of two or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase classes of capital stock (including shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price (as determined pursuant to subsection (f) belowand other capital stock) of the Common Stock on such record dateCompany, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of Directors, Directors (whose determination shall be conclusive evidence of such fair market value and shall be described in a Board Resolutionstatement filed with the Trustee) shall determine in good faith the allocation of the portion of the assets so distributed adjusted Conversion Price between or among shares of such subscription rights classes of capital stock or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders shares of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, and other capital stock.
(2) In any case in case the Company which this Section shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stockrequire that an adjustment be made immediately following a record date, the Company may, may elect to defer (but only until five (5) Trading Days following the filing by the Company with the Trustee of the certificate described in lieu (a)) issuing to the Holder of making any adjustment pursuant to this Section 1407, make proper provision so that each holder of a Security who converts Bond converted after 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 over and above the shares of Common Stock issuable upon such conversion on the basis of the Conversion Price prior to adjustment.
(3) No adjustment in the "Conversion Shares")Price shall be required unless such adjustment would require an increase or decrease of at least one percent (1%) of such price; provided, a number however, that any adjustments which by reason of Rights this Subsection (3) are not required to be determined made shall be carried forward and taken into account in any subsequent adjustment and, provided further, that adjustment shall be required and made in accordance with the provisions of this Article Thirteen (other than this Subsection (3)) not later than such time as follows: (i) if such conversion occurs on or prior may be required in order to preserve the date for the tax-free nature of a distribution to the holders of Rights of separate certificates evidencing such Rights (Bonds or Common Stock. All calculations under this Section 1304 shall be made to the "Distribution Date"), nearest cent or to the same number of Rights to which a holder nearest 1/100th 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offershare, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of be. Anything in this Section or this paragraph (e) has been madeto the contrary notwithstanding, exceeds 15% of the product of Company shall be entitled to make such reductions in the Current Market Price per share (determined as provided Conversion Price, in paragraph (f) of addition to those required by this Section) , as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of the Common Stock on the Purchase Date multiplied shares, distribution or rights to purchase stock or securities, or distribution of securities convertible into or exchangeable for stock hereafter made by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price to its stockholders shall not be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Datetaxable.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
Appears in 3 contracts
Sources: Indenture (Ilx Inc/Az/), Indenture (Ilx Inc/Az/), Indenture (Ilx Inc/Az/)
Adjustment of Conversion Price. The conversion price or rate (herein called the "Conversion Price Price") for a series of Securities shall be as set forth in a Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Sections 201 and 301 by or pursuant to which the form and terms of the Securities of such series were established, and, except as otherwise provided therein, shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) make or pay a dividend (or other distribution) in shares of Common Stock to holders on any class of Common StockCapital Stock of the Company, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or shares, (43) combine its outstanding shares of Common Stock into a smaller number of shares or (4) issue by reclassification of its Common StockStock any shares of capital stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other capital stock of the Company which he would have owned immediately following such action had such Securities Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (h) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification. If as a result of an adjustment made pursuant to this subsection (a), the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of Capital Stock (including shares of Common Stock) of the Company, the Board of Directors (whose determination shall, if made in good faith, be conclusive and shall be described in a statement filed with the Trustee) shall determine the allocation of the adjusted Conversion Price between or among shares of such classes of Capital Stock.
(b) In case the Company shall issue rights rights, options or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price current market price per share (as determined pursuant to subsection (f) below) of the Common Stock on such the record datedate mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by multiplying multiplying:
(1) the Conversion Price in effect immediately prior to the date of issuance of such record date rights, options or warrants by a fraction fraction, of which which
(2) the numerator shall be (A) the number of shares of Common Stock outstanding on the date of issuance of such record daterights, options or warrants, immediately prior to such issuance, plus (B) the number of shares of Common Stock which the aggregate offering price of the total number of shares so offered shares of Common Stock (for subscription or the aggregate conversion price of the convertible securities so offered) purchase would purchase at such Current Market Pricecurrent market price (determined by multiplying such total number of shares by the exercise price of such rights, options or warrants and dividing the product so obtained by such current market price), and of which which
(3) the denominator shall be (A) the number of shares of Common Stock outstanding on the date of issuance of such record date rights, options or warrants, immediately prior to such issuance, plus (B) the number of additional shares of Common Stock offered (or into which the convertible securities are so offered are convertible)for subscription or purchase. Such adjustments adjustment shall become effective immediately immediately, except as provided in subsection (h) below, after the record date for the determination of holders entitled to receive such record daterights or warrants; provided, however, that if any such rights, options or warrants issued by the Company as described in this subsection (b) are only exercisable upon the occurrence of certain triggering events relating to control and provided for in shareholders' rights plans, then the Conversion Price shall not be adjusted as provided in this subsection (b) until such triggering events shall occur .
(c) In case the Company or any of its Subsidiaries shall distribute to all holders of Common Stock evidences of indebtedness, shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness cash or other assets (including securities, but other than (x) regular dividends or distributions paid exclusively in cash dividends out of current or retained earnings), (y) any dividend or shall distribute distribution for which an adjustment is required to substantially all holders of Common Stock rights be made in accordance with subsection (a) or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of Directors, whose determination shall shall, if made in good faith, be conclusive evidence of such fair market value and described in a Board Resolutionvalue) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price current market price per share of the Common Stock. Such adjustment shall become effective immediately immediately, except as provided in subsection (h) below, after the record date for the determination of the holders of Common Stock stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the fair market value of the assets, evidences of indebtedness or other securities so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such fair market value by less than $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (c) and, to the extent applicable, the provisions of subsection (k) shall apply to such distribution.
(d) In case the Company or any Subsidiary of the Company shall issue rights make any distribution consisting exclusively of cash (excluding any cash portion of distributions for which an adjustment is required to be made in accordance with (c) above, or warrants cash distributed upon a merger or consolidation to subscribe which Section 1705 applies) to all holders of Common Stock in an aggregate amount that, combined together with (i) all other such all-cash distributions made within the then preceding 12 months in respect of which no adjustment has been made and (ii) any cash and the fair market value of other consideration paid or payable in respect of any tender offer by the Company or any of its Subsidiaries for additional shares Common Stock concluded within the preceding 12 months in respect of which no adjustment has been made, exceeds 15% of the Company's capital market capitalization (defined as being the product of the then current market price of the Common Stock (determined as provided in subsection (f) below) times the number of shares of Common Stock then outstanding) on the record date of such distribution, then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the then current market price per share of the Common Stock on such record date less the amount of the cash so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (h) below, after the record date for the determination of stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the cash so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such amount of cash by less that $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (d), and, to the extent applicable, the provisions of subsection (k) shall apply to such distribution.
(e) In case there shall be completed a tender or exchange offer made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock (any such tender or exchange offer being referred to as an "Offer") that involves an aggregate consideration having a fair market value as of the expiration of such Offer (the "Expiration Time") that, together with (i) any cash and the fair market value of any other consideration payable in respect of any other Offer, as of the expiration of such other Offer, expiring within the 12 months preceding the expiration of such Offer and in respect for which no Conversion Price adjustment pursuant to this subsection (e) has been made and (ii) the aggregate amount of any all-cash distributions referred to in subsection (d) of this Section 1704 to all holders of Common Stock within the 12 months preceding the expiration of such Offer for which no Conversion Price adjustment pursuant to such subsection (d) has been made, exceeds 15% of the product of the then current market price per share (determined as provided in subsection (f) below) of the Common Stock on the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time, the Conversion Price shall be reduced by multiplying such Conversion Price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be (i) the product of the then current market price per share (determined as provided in subsection (f) below) of the Common Stock on the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time minus (ii) the fair market value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the Offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted being referred to as the "Purchased Shares") and the denominator shall be the product of (i) such current market price per share on the Expiration Time times (ii) such number of outstanding shares on the Expiration Time less the number of Purchased Shares, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. For purposes of this subsection (e), the fair market value of any consideration with respect to an Offer shall be reasonably determined in good faith by the Board of Directors of the Company and described in a Board Resolution.
(f) For the purpose of any computation under subsections (b), (c), (d) and (e) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the Last Sale Prices of a share of Common Stock for the five consecutive Trading Days selected by the Company commencing not more than 20 Trading Days before, and ending not later than, the earlier of the date in question and the date before the "ex date," with respect to the issuance, distribution or Offer requiring such computation. For purposes of this paragraph, the term "ex date," when used with respect to any issuance, distribution or payments with respect to an Offer, means the first date on which the Common Stock trades regular way on the New York Stock Exchange (or if not listed or admitted to trading thereon, then on the principal national securities exchange on which the Common Stock is listed or admitted to trading) without the right to receive such issuance, distribution or Offer.
(g) In addition the foregoing adjustments in subsections (a), (b), (c), (d) and (e) above, the Company will be permitted to make such reductions in the Conversion Price as it considers to be advisable in order that any event treated for Federal income tax purposes as a dividend of stock or stock rights will not be taxable to the holders of the shares of Common Stock. In the event the Company elects to make such a reduction in the Conversion Price, the Company shall comply with the requirements of Rule 14e-1 of the Exchange Act and any other Federal and state laws and regulations thereunder if and to the extent that such laws and regulations are applicable in connection with the reduction of the Conversion Price; provided, however, that any provisions of this Indenture which conflict with such laws shall be deemed to be superseded by the provisions of such laws.
(h) In any case in which this Section 1704 shall require that an adjustment (including by reason of the second sentence of subsection (a) or (c) above) be made immediately following a record date, the Company may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), in which case the Company shall, with respect to any Security converted after such record date and before such adjustment shall have become effective, (i) defer paying any cash payment pursuant to Section 1703 or issuing to the Holder of such Security the number of shares of Common Stock and other Capital Stock of the Company (or other assets or securities) issuable upon such conversion in excess of the number of shares of Common Stock and other Capital Stock of the Company issuable thereupon only on the basis of the Conversion Price prior to adjustment and (ii), not later than five Business Days after such adjustment shall have become effective, pay to such Holder the appropriate cash payment pursuant to Section 1703 and issue to such Holder the additional shares of Common Stock and other Capital Stock of the Company (or other assets or securities) issuable on such conversion.
(i) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% of the Conversion Price; provided, however, that any adjustments which by reason of this subsection (i) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article Seventeen shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(j) Whenever the Conversion Price is adjusted as herein provided, the Company shall promptly (i) file with the Trustee and each Conversion Agent an Officer's Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment, and (ii) give or cause to be given a notice of such adjustment to each Holder of Securities in the manner provided in Section 106.
(k) In the event that the Company distributes rights (including rights to distributions referred to by paragraphs (c) and (d) of this Section 1704 to the extent this paragraph (k) applies thereto) or warrants (other than those referred to in subsection (b) above) ("Rights") pro rata to substantially all holders of Common Stock, so long as any such rights or warrants have not expired or been redeemed by the Company, the Company may, in lieu of making any adjustment pursuant to this Section 1407, shall make proper provision so that each holder the Holder of a any Security who converts such Security (or any portion thereof) after the record date surrendered for such distribution and prior to the expiration or redemption of the Rights shall conversion will be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights rights or warrants to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights rights or warrants of separate certificates evidencing such Rights rights or warrants (the "Distribution Date"), the same number of Rights rights or warrants to which a holder of a number of shares of Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; rights or warrants, and (ii) if such conversion occurs after the such Distribution Date, the same number of Rights rights or warrants to which a holder of the number of shares of Common Stock into which the principal amount of the such Security so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.prio
Appears in 2 contracts
Sources: Senior Indenture (Hanover Compressor Co /), Senior Indenture (Hanover Compressor Co /)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment adjusted from time to time as follows:
(a) In case the Company Guarantor shall hereafter (1i) pay a dividend or make a distribution on its Common Stock in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3ii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or shares, (4iii) combine its outstanding shares of Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of Common StockCapital Stock of the Guarantor, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other Capital Stock of the Guarantor which he would have owned immediately following such action had such Securities Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification. If, as a result of an adjustment made pursuant to this subsection (a), the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of Capital Stock or shares of Common Stock and other Capital Stock of the Guarantor, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed with the Trustee and with the Registrar) shall determine in an equitable manner the allocation of the adjusted Conversion Price between or among shares of such classes of Capital Stock or shares of Common Stock and other Capital Stock.
(b) In case the Company Guarantor shall hereafter issue rights or warrants to substantially all holders of its outstanding shares of Common Stock generally entitling them (for a period commencing no earlier than expiring within 45 days after the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record datementioned below) 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 (as determined pursuant to subsection (f) below) per share of the Common Stock on such the record datedate mentioned below, the Conversion Price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of issuance of such record date rights or warrants by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on the date of issuance of such record date, rights or warrants plus the number of shares of Common Stock which the aggregate offering price of the total number of shares so offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on the date of issuance of such record date rights or warrants plus the number of additional shares of Common Stock offered (for subscription or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive such record daterights or warrants.
(c) In case the Company Guarantor shall hereafter distribute to all holders of its outstanding Common Stock shares generally evidences of its indebtedness or assets (excluding any class of Capital Stock cash dividend paid from retained earnings of the Company other than Common Stock, evidences Guarantor and dividends or distributions payable in stock for which adjustment is made pursuant to subsection (a) of indebtedness this Section 10.05) or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for to securities of the Guarantor (other than excluding those Securities referred to in subsection (b) aboveof this Section 10.05), then in each such case the Conversion Price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) per share of the Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and shall be described in a Board Resolutionstatement filed with the Trustee and with the Registrar) of the portion of the evidences of indebtedness or assets so distributed to the holder of one share of Common Stock or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price per share of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock shareholders entitled to receive such distribution. Notwithstanding .
(d) In any case in which this Section 10.05 shall require that an adjustment be made immediately following a record date, the foregoing, in case Guarantor may elect to defer (but only until five Business Days following the filing by the Company shall issue rights or warrants to subscribe for additional shares with the Trustee and the Registrar of the Company's capital stock (other than those referred to certificate of independent public accountants described in subsection (bf) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, make proper provision so that each holder 10.05) issuing to the Holder of a any Security who converts converted after 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 over and above the shares of Common Stock issuable upon such conversion on the basis of the Conversion Price prior to adjustment.
(e) No adjustment in the "Conversion Shares"Price shall be required unless such adjustment would require an increase or decrease of at least 1% of such price; provided, however, that any adjustments which by reason of this subsection (e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment, and provided further that adjustment shall be required and made in accordance with the provisions of this Article 10 (other than this subsection (e)), not later than such time as may be required in order to preserve the tax-free nature of 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 (Securities or Common Stock. All calculations under this Section 10.05 shall be made to the "Distribution Date"), nearest cent or to the same number of Rights to which a holder nearest 1/100th 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offershare, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of be. Anything in this Section 10.05 to the contrary notwithstanding, the Guarantor shall be entitled to make such reductions in the Conversion Price, in addition to those required by this Section 10.05, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock or this paragraph (e) has been madesecurities, exceeds 15% or distribution of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied securities convertible into or exchangeable for stock hereafter made by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price Guarantor to its shareholders shall not be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Datetaxable.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be Whenever the average of the Daily Market Prices for the shorter of Conversion Price is adjusted as herein provided, (i) 30 consecutive Business Days ending on the last full Trading Day on Company and the exchange or market referred to in determining Guarantor shall promptly file with the Trustee and the Registrar a certificate of a firm of independent public accountants setting forth the Conversion Price after such Daily Market Prices prior to adjustment and setting forth a brief statement of the time facts requiring such adjustment and the manner of determination or computing the same, which certificate shall be conclusive evidence of the correctness of such adjustment and (ii) a notice stating that the period commencing on Conversion Price has been adjusted and setting forth the date next succeeding adjusted Conversion Price shall forthwith be given by the first public announcement Company and the Guarantor to the Holders in the manner provided in Section 13.02. Subject to TIA Section 315(a), (c) and (d), the Trustee and any conversion agent shall be under no duty or responsibility with respect to any such certificate or the certificate provided for in Section 10.10 except to exhibit the same from time to time to any Holder of a Security desiring an inspection of such certificate.
(g) In the event that at any time as a result of an adjustment made pursuant to subsection (a) of this Section 10.05, the Holder of any Security thereafter surrendered for conversion shall become entitled to receive any shares of the issuance Guarantor other than shares of Common Stock, thereafter the Conversion Price of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day shares so receivable upon conversion of any Security shall be subject to adjustment from time to time in a manner and on the exchange or market referred to in determining such Daily Market Prices prior terms as nearly equivalent as practicable to the time of determinationprovisions with respect to Common Stock contained in this Article 10.
Appears in 2 contracts
Sources: Indenture (Toll Brothers Inc), Indenture (Toll Corp)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1i) pay issue Common Stock as a dividend in or distribution on its capital stock, including the Common Stock, (ii) combine its outstanding shares of Common Stock to holders into a smaller number of Common Stockshares, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3iii) subdivide its outstanding shares of Common Stock into a greater number of shares, or (iv) issue by reclassification of its Common Stock any shares of Common Stock or (4) combine its outstanding shares capital stock of Common Stock into a smaller number of shares of Common Stockthe Company, the Conversion Price conversion price in effect immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he or other capital stock of the Company that it would have owned or been entitled to receive immediately following such action had such Securities Security been converted immediately prior theretoto the occurrence of such action. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date date, in the case of a dividend or distribution and shall become effective distribution, or immediately after the effective date date, in the case of a subdivision subdivision, combination or combination.
reclassification. If, as a result of an adjustment made pursuant to this subsection (b) In case a), the Company holder of any Securities thereafter surrendered for conversion shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock become entitled to receive such rights shares of two or warrants and expiring not more than 45 days after such record date) to subscribe for classes of capital stock or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price (as determined pursuant to subsection (f) below) and other capital stock of the Common Stock on such record dateCompany, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of Directors, Directors (whose determination shall be conclusive evidence of such fair market value and shall be described in a Board Resolutionstatement filed by the Company with the Trustee and with any conversion agent as soon as practicable) shall determine the allocation of the portion of the assets so distributed adjusted conversion price between or among shares of such subscription rights or warrants applicable to one share classes of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Datecapital stock.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
Appears in 2 contracts
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment adjusted from time to time as follows:
(a) In case the Company shall hereafter (1i) pay a dividend or make a distribution on its Common Stock in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3ii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or shares, (4iii) combine its outstanding shares of Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of Common StockCapital Stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other Capital Stock of the Company which it, he or she would have owned immediately following such action had such Securities Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date Record Date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification. If, as a result of an adjustment made pursuant to this subsection (a), the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of Capital Stock or shares of Common Stock and other Capital Stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed with the Trustee and with the Registrar) shall determine in an equitable manner the allocation of the adjusted Conversion Price between or among shares of such classes of Capital Stock or shares of Common Stock and other Capital Stock.
(b) In case the Company shall hereafter issue rights or warrants to substantially all holders of its outstanding shares of Common Stock generally entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than within 45 days after such record datethe Record Date mentioned below) 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 (as determined pursuant to subsection (f) below) per share of the Common Stock on such record datethe Record Date mentioned below, the Conversion Price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of issuance of such record date rights or warrants by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on the date of issuance of such record date, rights or warrants plus the number of shares of Common Stock which the aggregate offering price of the total number of shares so offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on the date of issuance of such record date rights or warrants plus the number of additional shares of Common Stock offered (for subscription or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall become effective immediately after the Record Date for the determination of shareholders entitled to receive such record daterights or warrants.
(c) In case the Company shall hereafter distribute to all holders of its outstanding Common Stock shares generally evidences of its indebtedness or assets (excluding any class of Capital Stock cash dividend paid from retained earnings of the Company other than Common Stock, evidences and dividends or distributions payable in stock for which adjustment is made pursuant to subsection (a) of indebtedness this Section 11.05) or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for to securities of the Company (other than excluding those Securities referred to in subsection (b) aboveof this Section 11.05), then in each such case the Conversion Price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) per share of the Common Stock on the record date Record Date mentioned below less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and shall be described in a Board Resolutionstatement filed with the Trustee and with the Registrar) of the portion of the evidences of indebtedness or assets so distributed to the holder of one share of Common Stock or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price per share of the Common Stock. Such adjustment shall become effective immediately after the record date Record Date for the determination of the holders of Common Stock shareholders entitled to receive such distribution. Notwithstanding the foregoing.
(d) In any case in which this Section 11.05 shall require that an adjustment be made immediately following a Record Date, in case the Company shall issue rights or warrants may elect to subscribe for additional shares defer (but only until five Business Days following the filing by the Issuer with the Trustee and the Registrar of the Company's capital stock (other than those referred to certificate of independent public accountants described in subsection (bf) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, make proper provision so that each holder of a Security who converts such Security (or any portion thereof11.05) after the record date for such distribution and prior issuing to the expiration or redemption Holder of the Rights shall be entitled to receive upon any Security converted after such conversion, in addition to Record Date the shares of Common Stock issuable upon such conversion over and above the shares of Common Stock issuable upon such conversion on the basis of the Conversion Price prior to adjustment.
(e) No adjustment in the "Conversion Shares"Price shall be required unless such adjustment would require an increase or decrease of at least 1% of such price; provided, however, that any adjustments which by reason of this subsection (e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment, and provided further that adjustment shall be required and made in accordance with the provisions of this Article Eleven (other than this subsection (e)), not later than such time as may be required in order to preserve the tax-free nature of 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 (Securities or Common Stock. All calculations under this Section 11.05 shall be made to the "Distribution Date"), nearest cent or to the same number of Rights to which a holder nearest 1/100th 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offershare, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of be. Anything in this Section 11.05 to the contrary notwithstanding, the Company shall be entitled to make such reductions in the Conversion Price, in addition to those required by this Section 11.05, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock or this paragraph (e) has been madesecurities, exceeds 15% or distribution of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied securities convertible into or exchangeable for stock hereafter made by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price to its shareholders shall not be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Datetaxable.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be Whenever the average of the Daily Market Prices for the shorter of Conversion Price is adjusted as herein provided, (i) 30 consecutive Business Days ending on the last full Trading Day on Issuer and the exchange or market referred to in determining Company shall promptly file with the Trustee and the Registrar a certificate of a firm of independent public accountants setting forth the Conversion Price after such Daily Market Prices prior to adjustment and setting forth a brief statement of the time facts requiring such adjustment and the manner of determination or computing the same, which certificate shall be conclusive evidence of the correctness of such adjustment and (ii) a notice stating that the period commencing on Conversion Price has been adjusted and setting forth the date next succeeding adjusted Conversion Price shall forthwith be given by the first public announcement Issuer and the Company to the Holders in the manner provided in Section 12.02. Subject to TIA Section 315(a), (c) and (d), the Trustee and any conversion agent shall be under no duty or responsibility with respect to any such certificate or the certificate provided for in Section 11.10 except to exhibit the same from time to time to any Holder of a Security desiring an inspection of such certificate.
(g) In the event that at any time as a result of an adjustment made pursuant to subsection (a) of this Section 11.05, the Holder of any Security thereafter surrendered for conversion shall become entitled to receive any shares of the issuance Company other than shares of Common Stock, thereafter the Conversion Price of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day shares so receivable upon conversion of any Security shall be subject to adjustment from time to time in a manner and on the exchange or market referred to in determining such Daily Market Prices prior terms as nearly equivalent as practicable to the time of determinationprovisions with respect to Common Stock contained in this Article Eleven.
Appears in 2 contracts
Sources: Indenture (Toll Brothers Inc), Indenture (Toll Brothers Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment adjusted from time to time as follows:
(a) 2.4.1. In case the Company shall hereafter (1i) pay a dividend or make a distribution on its Common Stock in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3ii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or shares, (4iii) combine its outstanding shares of Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of Common Stockcapital stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of this Note or any Security portion hereof thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other capital stock of the Company which he would have owned immediately following such action had this Note or such Securities portion hereof been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) 2.4.1 shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combination.
(b) In case reclassification. If, as a result of an adjustment made pursuant to this subsection 2.4.1, the Company Holder of this Note or such portion hereof thereafter surrendered for conversion shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock become entitled to receive such rights shares of two or warrants and expiring not more than 45 days after such record date) to subscribe for classes of capital stock or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price (as determined pursuant to subsection (f) below) and other capital stock of the Common Stock on such record dateCompany, the Board of Directors (whose determination shall be conclusive) shall reasonably determine the allocation of the adjusted Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to between or among shares of such record date by a fraction classes of which the numerator shall be the number of capital stock or shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record dateother capital stock.
(c) In case 2.4.2. If the Company shall distribute to all holders of Common Stock shares amount of any class single adjustment of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment required pursuant to this Section 1407subsection 2.4.2 would be less than one cent ($0.01) at the time such adjustment is otherwise so required to be made, 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 amount 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 carried forward and adjustment with respect thereto made at the time of such conversion in accordance and together with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of 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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price subsequent adjustment pursuant to paragraph (c) of this Section) in an aggregate amount thatwhich, together with the sum of (x) the aggregate such amount of and any other distributions to all holders of its Common Stock made in cash plus amount or amounts so carried forward, shall aggregate at least one cent (y$0.01) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), when the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Dateis adjusted.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
Appears in 2 contracts
Sources: Convertible Subordinated Note (Service Experts Inc), Convertible Subordinated Note (Service Experts Inc)
Adjustment of Conversion Price. The conversion price or rate (herein called the "Conversion Price Price") for a series of Securities shall be as set forth in a Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Sections 201 and 301 by or pursuant to which the form and terms of the Securities of such series were established, and, except as otherwise provided therein, shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) make or pay a dividend (or other distribution) in shares of Common Stock to holders on any class of Common StockCapital Stock of the Company, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or shares, (43) combine its outstanding shares of Common Stock into a smaller number of shares or (4) issue by reclassification of its Common StockStock any shares of capital stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other capital stock of the Company which he would have owned immediately following such action had such Securities Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (h) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification. If as a result of an adjustment made pursuant to this subsection (a), the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of Capital Stock (including shares of Common Stock) of the Company, the Board of Directors (whose determination shall, if made in good faith, be conclusive and shall be described in a statement filed with the Trustee) shall determine the allocation of the adjusted Conversion Price between or among shares of such classes of Capital Stock.
(b) In case the Company shall issue rights rights, options or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price current market price per share (as determined pursuant to subsection (f) below) of the Common Stock on such the record datedate mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by multiplying multiplying:
(1) the Conversion Price in effect immediately prior to the date of issuance of such record date rights, options or warrants by a fraction fraction, of which which
(2) the numerator shall be (A) the number of shares of Common Stock outstanding on the date of issuance of such record daterights, options or warrants, immediately prior to such issuance, plus (B) the number of shares of Common Stock which the aggregate offering price of the total number of shares -70- so offered shares of Common Stock (for subscription or the aggregate conversion price of the convertible securities so offered) purchase would purchase at such Current Market Pricecurrent market price (determined by multiplying such total number of shares by the exercise price of such rights, options or warrants and dividing the product so obtained by such current market price), and of which which
(3) the denominator shall be (A) the number of shares of Common Stock outstanding on the date of issuance of such record date rights, options or warrants, immediately prior to such issuance, plus (B) the number of additional shares of Common Stock offered (or into which the convertible securities are so offered are convertible)for subscription or purchase. Such adjustments adjustment shall become effective immediately immediately, except as provided in subsection (h) below, after the record date for the determination of holders entitled to receive such record daterights or warrants; provided, however, that if any such rights, options or warrants issued by the Company as described in this subsection (b) are only exercisable upon the occurrence of certain triggering events relating to control and provided for in shareholders' rights plans, then the Conversion Price shall not be adjusted as provided in this subsection (b) until such triggering events shall occur .
(c) In case the Company or any of its Subsidiaries shall distribute to all holders of Common Stock evidences of indebtedness, shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness cash or other assets (including securities, but other than (x) regular dividends or distributions paid exclusively in cash dividends out of current or retained earnings(y) any dividend or distribution for which an adjustment is required to be made in accordance with subsection (a) or (b) above), subsection (a) or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of Directors, whose determination shall shall, if made in good faith, be conclusive evidence of such fair market value and described in a Board Resolutionvalue) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price current market price per share of the Common Stock. Such adjustment shall become effective immediately immediately, except as provided in subsection (h) below, after the record date for the determination of the holders of Common Stock stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the fair market value of the assets, evidences of indebtedness or other securities so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such fair market value by less than $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (c) and, to the extent applicable, the provisions of subsection (k) shall apply to such distribution.
(d) In case the Company or any Subsidiary of the Company shall issue rights make any distribution consisting exclusively of cash (excluding any cash portion of distributions for which an adjustment is required to be made in accordance with (c) above, or warrants cash distributed upon a merger or consolidation to subscribe which Section 1705 applies) to all holders of Common Stock in an aggregate amount that, combined together with (i) all other such all-cash distributions made within the then preceding 12 months in respect of which no adjustment has been made and (ii) any cash and the fair market value of other consideration paid or payable in respect of any tender offer by the Company or any of its Subsidiaries for additional shares Common Stock concluded within the preceding 12 months in respect of which no adjustment has been made, exceeds 15% of the Company's capital market capitalization (defined as being the product of the then current market price of the Common Stock (determined as provided in -71- subsection (f) below) times the number of shares of Common Stock then outstanding) on the record date of such distribution, then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the then current market price per share of the Common Stock on such record date less the amount of the cash so distributed applicable to one share of Common Stock, and of which the denominator shall be such current market price per share of the Common Stock. Such adjustment shall become effective immediately, except as provided in subsection (h) below, after the record date for the determination of stockholders entitled to receive such distribution. Notwithstanding the foregoing, in the event that the cash so distributed applicable to one share of Common Stock equals or exceeds such current market price per share of Common Stock, or such current market price exceeds such amount of cash by less that $0.10 per share, the Conversion Price shall not be adjusted pursuant to this subsection (d), and, to the extent applicable, the provisions of subsection (k) shall apply to such distribution.
(e) In case there shall be completed a tender or exchange offer made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock (any such tender or exchange offer being referred to as an "Offer") that involves an aggregate consideration having a fair market value as of the expiration of such Offer (the "Expiration Time") that, together with (i) any cash and the fair market value of any other consideration payable in respect of any other Offer, as of the expiration of such other Offer, expiring within the 12 months preceding the expiration of such Offer and in respect for which no Conversion Price adjustment pursuant to this subsection (e) has been made and (ii) the aggregate amount of any all-cash distributions referred to in subsection (d) of this Section 1704 to all holders of Common Stock within the 12 months preceding the expiration of such Offer for which no Conversion Price adjustment pursuant to such subsection (d) has been made, exceeds 15% of the product of the then current market price per share (determined as provided in subsection (f) below) of the Common Stock on the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time, the Conversion Price shall be reduced by multiplying such Conversion Price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be (i) the product of the then current market price per share (determined as provided in subsection (f) below) of the Common Stock on the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time minus (ii) the fair market value of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the Offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted being referred to as the "Purchased Shares") and the denominator shall be the product of (i) such current market price per share on the Expiration Time times (ii) such number of outstanding shares on the Expiration Time less the number of Purchased Shares, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. For purposes of this subsection (e), the fair market value of any consideration with respect to an Offer shall be reasonably determined in good faith by the Board of Directors of the Company and described in a Board Resolution.
(f) For the purpose of any computation under subsections (b), (c), (d) and (e) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the Last Sale Prices of a share of Common Stock for the five consecutive Trading Days selected by the Company commencing not more than 20 Trading Days before, and ending not later than, the earlier of the date in question and the date before the "ex date," with respect to the issuance, distribution or Offer requiring such computation. For purposes of this paragraph, the term "ex date," when used with respect to any issuance, distribution or payments with respect to an Offer, means the first date on which the Common Stock trades regular way on the New York Stock Exchange (or if not listed or admitted to trading thereon, then on the principal national securities exchange on which the Common Stock is listed or admitted to trading) without the right to receive such issuance, distribution or Offer.
(g) In addition the foregoing adjustments in subsections (a), (b), (c), (d) and (e) above, the Company will be permitted to make such reductions in the Conversion Price as it considers to be advisable in order that any event treated for Federal income tax purposes as a dividend of stock or stock rights will not be taxable to the holders of the shares of Common Stock. In the event the Company elects to make such a reduction in the Conversion Price, the Company shall comply with the requirements of Rule 14e-1 of the Exchange Act and any other Federal and state laws and regulations thereunder if and to the extent that such laws and regulations are applicable in connection with the reduction of the Conversion Price; provided, however, that any provisions of this Indenture which conflict with such laws shall be deemed to be superseded by the provisions of such laws.
(h) In any case in which this Section 1704 shall require that an adjustment (including by reason of the second sentence of subsection (a) or (c) above) be made immediately following a record date, the Company may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), in which case the Company shall, with respect to any Security converted after such record date and before such adjustment shall have become effective, (i) defer paying any cash payment pursuant to Section 1703 or issuing to the Holder of such Security the number of shares of Common Stock and other Capital Stock of the Company (or other assets or securities) issuable upon such conversion in excess of the number of shares of Common Stock and other Capital Stock of the Company issuable thereupon only on the basis of the Conversion Price prior to adjustment and (ii), not later than five Business Days after such adjustment shall have become effective, pay to such Holder the appropriate cash payment pursuant to Section 1703 and issue to such Holder the additional shares of Common Stock and other Capital Stock of the Company (or other assets or securities) issuable on such conversion.
(i) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% of the Conversion Price; provided, however, that any adjustments which by reason of this subsection (i) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article Seventeen shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(j) Whenever the Conversion Price is adjusted as herein provided, the Company shall promptly (i) file with the Trustee and each Conversion Agent an Officer's Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment, and (ii) give or cause to be given a notice of such adjustment to each Holder of Securities in the manner provided in Section 106.
(k) In the event that the Company distributes rights (including rights to distributions referred to by paragraphs (c) and (d) of this Section 1704 to the extent this paragraph (k) applies thereto) or warrants (other than those referred to in subsection (b) above) ("Rights") pro rata to substantially all holders of Common Stock, so long as any such rights or warrants have not expired or been redeemed by the Company, the Company may, in lieu of making any adjustment pursuant to this Section 1407, shall make proper provision so that each holder the Holder of a any Security who converts such Security (or any portion thereof) after the record date surrendered for such distribution and prior to the expiration or redemption of the Rights shall conversion will be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights rights or warrants to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights rights or warrants of separate certificates evidencing such Rights rights or warrants (the "Distribution Date"), the same number of Rights rights or warrants to which a holder of a number of shares of Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; rights or warrants, and (ii) if such conversion occurs after the such Distribution Date, the same number of Rights rights or warrants to which a holder of the number of shares of Common Stock into which the principal amount of the such Security so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.co
Appears in 2 contracts
Sources: Senior Indenture (Highland Autoplex Inc), Senior Indenture (Highland Autoplex Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment adjusted from time to time as follows:
(a) In case the Company Guarantor shall hereafter (1i) pay a dividend or make a distribution on its Common Stock in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3ii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or shares, (4iii) combine its outstanding shares of Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of Common StockCapital Stock of the Guarantor, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other Capital Stock of the Guarantor which he would have owned immediately following such action had such Securities Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification. If, as a result of an adjustment made pursuant to this subsection (a), the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of Capital Stock or shares of Common Stock and other Capital Stock of the Guarantor, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed with the Trustee and with the Registrar) shall determine in an equitable manner the allocation of the adjusted Conversion Price between or among shares of such classes of Capital Stock or shares of Common Stock and other Capital Stock.
(b) In case the Company Guarantor shall hereafter issue rights or warrants to substantially all holders of its outstanding shares of Common Stock generally entitling them (for a period commencing no earlier than expiring within 45 days after the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record datementioned below) 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 (as determined pursuant to subsection (f) below) per share of the Common Stock on such the record datedate mentioned below, the Conversion Price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of issuance of such record date rights or warrants by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on the date of issuance of such record date, rights or warrants plus the number of shares of Common Stock which the aggregate offering price of the total number of shares so offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on the date of issuance of such record date rights or warrants plus the number of additional shares of Common Stock offered (for subscription or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive such record daterights or warrants.
(c) In case the Company Guarantor shall hereafter distribute to all holders of its out- standing Common Stock shares generally evidences of its indebtedness or assets (excluding any class of Capital Stock cash dividend paid from retained earnings of the Company other than Common Stock, evidences Guarantor and dividends or distributions payable in stock for which adjustment is made pursuant to subsection (a) of indebtedness this Section 10.05) or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for to securities of the Guarantor (other than excluding those Securities referred to in subsection (b) aboveof this Section 10.05), then in each such case the Conversion Price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) per share of the Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and shall be described in a Board Resolutionstatement filed with the Trustee and with the Registrar) of the portion of the evidences of indebtedness or assets so distributed to the holder of one share of Common Stock or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price per share of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock shareholders entitled to receive such distribution. Notwithstanding .
(d) In any case in which this Section 10.05 shall require that an adjustment be made immediately following a record date, the foregoing, in case Guarantor may elect to defer (but only until five Business Days following the filing by the Company shall issue rights or warrants to subscribe for additional shares with the Trustee and the Registrar of the Company's capital stock (other than those referred to certificate of independent public accountants described in subsection (bf) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, make proper provision so that each holder 10.05) issuing to the Holder of a any Security who converts converted after 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 over and above the shares of Common Stock issuable upon such conversion on the basis of the Conversion Price prior to adjustment.
(e) No adjustment in the "Conversion Shares"Price shall be required unless such adjustment would require an increase or decrease of at least 1% of such price; provided, however, that any adjustments which by reason of this subsection (e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment, and provided further that adjustment shall be required and made in accordance with the provisions of this Article 10 (other than this subsection (e)), not later than such time as may be required in order to preserve the tax-free nature of 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 (Securities or Common Stock. All calculations under this Section 10.05 shall be made to the "Distribution Date"), nearest cent or to the same number of Rights to which a holder nearest 1/100th 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offershare, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of be. Anything in this Section 10.05 to the contrary notwithstanding, the Guarantor shall be entitled to make such reductions in the Conversion Price, in addition to those required by this Section 10.05, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock or this paragraph (e) has been madesecurities, exceeds 15% or distribution of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied securities convertible into or exchangeable for stock hereafter made by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price Guarantor to its shareholders shall not be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Datetaxable.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be Whenever the average of the Daily Market Prices for the shorter of Conversion Price is adjusted as herein provided, (i) 30 consecutive Business Days ending on the last full Trading Day on Company and the exchange or market referred to in determining Guarantor shall promptly file with the Trustee and the Registrar a certificate of a firm of independent public accountants setting forth the Conversion Price after such Daily Market Prices prior to adjustment and setting forth a brief statement of the time facts requiring such adjustment and the manner of determination or computing the same, which certificate shall be conclusive evidence of the correctness of such adjustment and (ii) a notice stating that the period commencing on Conversion Price has been adjusted and setting forth the date next succeeding adjusted Conversion Price shall forthwith be given by the first public announcement Company and the Guarantor to the Holders in the manner provided in Section 13.02. Subject to TIA Section 315(a), (c) and (d), the Trustee and any conversion agent shall be under no duty or responsibility with respect to any such certificate or the certificate provided for in Section 10.10 except to exhibit the same from time to time to any Holder of a Security desiring an inspection of such certificate.
(g) In the event that at any time as a result of an adjustment made pursuant to subsection (a) of this Section 10.05, the Holder of any Security thereafter surrendered for conversion shall become entitled to receive any shares of the issuance Guarantor other than shares of Common Stock, thereafter the Conversion Price of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day shares so receivable upon conversion of any Security shall be subject to adjustment from time to time in a manner and on the exchange or market referred to in determining such Daily Market Prices prior terms as nearly equivalent as practicable to the time of determinationprovisions with respect to Common Stock contained in this Article 10.
Appears in 2 contracts
Sources: Indenture (Toll Brothers Inc), Indenture (Toll Brothers Inc)
Adjustment of Conversion Price. The conversion price or rate (herein called the "Conversion Price Price") for the Securities of any Series shall be as set forth in the Authorizing Resolution and/or supplemental indenture (if any) pursuant to which the form and terms of the Securities of such Series were established, and, except as otherwise pro- vided therein, shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) or make a distribution in shares of Common Stock to holders of on the Common Stock, (32) subdivide its outstanding outstand- ing shares of Common Stock into a greater number of shares of Common Stock or shares, (43) combine its outstanding shares of Common Stock into a smaller number of shares or (4) issue by reclassification of its Common StockStock any shares of Capital Stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of any Security thereafter thereaf- ter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other Capital Stock of the Company which he such Holder would have owned immediately following such action had such Securities Secu- rity been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as pro- vided in subsection (e) below, after the record date in the case of a dividend div- idend or distribution and shall become effective immediately after the effective ef- fective date in the case of a subdivision subdivision, combination or combinationreclassifica- tion. If, as a result of an adjustment made pursuant to this subsection (a), the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of Capital Stock (including shares of Common Stock and other Capital Stock) of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed with the Trustee) shall deter- mine the allocation of the adjusted Conversion Price between or among shares of such classes of Capital Stock or shares of Common Stock and other Capital Stock.
(b) In case the Company shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than exceeding 45 days after from the date of such record dateissuance) 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 current market price per share (as determined de- termined pursuant to subsection (fd) below) of the Common Stock on such record datethe rec- ord date mentioned below, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.price,
(c) In case the Company shall distribute to substantially all holders of Common Stock shares Stock, evidences of any class of Capital Stock of indebtedness, equity securities (including eq- uity interests in the Company Company's Subsidiaries) other than Common Stock, evidences of indebtedness or other assets (other than cash dividends paid out of current or retained earningssurplus of the Compa- ny), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), ) then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in subsection (fd) below) of the Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of DirectorsDirectors (whose de- termination shall, whose determination shall if made in good faith, be conclusive evidence of such fair market value and described in a Board Resolutionvalue) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price current market price per share of the Common Stock. Such adjustment shall become effective immediately immediately, except as provided in subsection (e) below, after the record date for the determination of the holders of Common Stock stockholders entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
Appears in 2 contracts
Sources: Subordinated Indenture (Coastal Corp), Subordinated Indenture (Coastal Corp)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time adjusted as follows:set forth in this section.
(a) In case If the Company shall (1) pay a dividend in issue or sell any shares of Common Stock at a price which is less than the Current Conversion Price, then the Conversion Price in effect immediately prior thereto shall be adjusted immediately so that the Conversion Price thereafter shall equal the price per share of Common Stock at which such shares of Common Stock described in this Section 3.06
(a) were issued or sold. The provisions of this paragraph (a) shall not apply to holders any issuance of additional shares of Common Stock for which an adjustment is provided under Section 3.06(b), (c) or (d).
(b) In the event that the Company shall make any distribution of its assets upon or with respect to its shares of Common Stock, as a liquidating or partial liquidating dividend, or other than as a dividend payable out of earnings or any surplus legally available for dividends under the laws of the state of incorporation of the Company, the Holder of this Convertible Note, upon the exercise of his right to convert after the record date for such distribution or, in the absence of a record date, after the date of such distribution, shall receive, in addition to the shares subscribed for, the amount of such assets (2or, at the option of the Company, a sum equal to the value thereof at the time of distribution as determined by the Board of Directors in its sole discretion) make which would have been distributed to the Holder if he had exercised his right to convert immediately prior to the record date for such distribution or, in the absence of a distribution in shares record date, immediately prior to the date of Common Stock to holders of Common Stock, such distribution.
(3c) In case at any time the Company shall subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or (4) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stockshares, the Current Conversion Price in effect immediately prior to such action subdivision shall be adjusted so that proportionately reduced and conversely, in case the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of outstanding shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to substantially all holders be combined into a smaller number of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than shares, the Current Market Price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator combination shall be proportionately increased.
(d) If any capital reorganization or reclassification of the number capital stock of the Company, or consolidation or merger of the Company with another corporation, or the sale, transfer or lease of all or substantially all of its assets to another corporation, shall be effected in such a way that the holder of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 conversionshares, securities or assets with respect to or in addition to the exchange for shares of Common Stock issuable Stock, then, as a condition of such reorganization, reclassification, consolidation, merger or sale, the Company or such successor or purchasing corporation, as the case may be, shall execute an amendment to this Convertible Note providing that the Holder of this Convertible Note shall have the right thereafter and until the expiration of the period of convertibility to convert this Convertible Note into the kind and amount of shares, securities or assets receivable upon such conversion (the "Conversion Shares")reorganization, a number of Rights to be determined as follows: (i) if such conversion occurs on reclassification, consolidation, merger 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 (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which sale by a holder of the number of shares of Common Stock into which the principal amount of the Security so this Convertible Note might have been 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 such reorganization, reclassification, consolidation, merger or sale, subject to adjustments which shall be as nearly equivalent as may be practicable to the Rightsadjustments provided for in this Section 3.
(de) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings Upon such adjustment of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) provisions of this Section or this paragraph (d) has been made3.06, exceeds 15% the number of the product of the Current Market Price per share (determined as provided in paragraph (f) shares issuable upon conversion of this Section) of Convertible Note shall be adjusted to the Common Stock on nearest full amount by multiplying a number equal to the Distribution Record Date multiplied Conversion Price in effect immediately prior to such adjustment by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury issuable upon exercise of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect this Convertible Note immediately prior to such adjustment and dividing the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) product so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided obtained by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Dateadjusted Conversion Price.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
Appears in 2 contracts
Sources: Convertible Note Purchase Agreement (Front Porch Digital Inc), Convertible Note Agreement (Front Porch Digital Inc)
Adjustment of Conversion Price. The Conversion Price of each ------------------------------ series of Preferred Stock shall be subject to adjustment from time to time as follows:
(ai) In case If the Company Corporation shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock into a greater number of shares of issue any Common Stock or (4) combine its outstanding shares other securities of Common Stock the Corporation convertible into a smaller number of shares of Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered or exchangeable for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (other than "Excluded Stock," as defined below, or securities convertible into Common Stock) at stock dividends, subdivisions, split-ups, combinations or dividends, which such events are covered by subparagraphs 4(e)(iii), (iv), and (v)), for a price consideration per share less than the Current Market Price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to for such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price series in effect immediately prior to the date issuance of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights other securities convertible into or warrants applicable to one share of exchangeable for Common Stock), and of which then the denominator Conversion Price for such series shall forthwith be such Current Market Price of the Common Stock. Such adjustment shall become effective decreased immediately after the record date for the determination of the holders of Common Stock entitled such issuance to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 price 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 quotient obtained by dividing:
(A) an amount equal 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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of of: (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the total number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in of Common Stock deemed to have been issued pursuant to subdivision (3) of this subparagraph (i)) immediately prior to such issuance multiplied by the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to such issuance plus (y) the effectiveness consideration received by the Corporation upon such issuance, by
(B) the total number of the Conversion Price reduction contemplated by this paragraph shares of Common Stock outstanding (e) by a fraction including any shares of which the numerator shall be the Current Market Price per share Common Stock deemed to have been issued pursuant to subdivision (determined as provided in paragraph (f3) of this Sectionsubparagraph (i)) immediately after the issuance of such Common Stock (or other securities convertible into or exchangeable for Common Stock). For purposes of making any such calculation pursuant to this subparagraph (i), the shares of Common Stock issuable upon conversion of the outstanding shares of Preferred Stock, together with any other shares of Common Stock deemed issued and outstanding pursuant to subdivision (3) of this subparagraph (i), shall be deemed issued and outstanding at all times. For the purposes of this subparagraph (i), the following provisions shall also be applicable:
(1) In the case of the issuance of Common Stock on for cash, the Purchase Date less consideration received therefor shall be deemed to be the amount of cash paid therefor without deducting any discounts or commissions paid or incurred by the Corporation in connection with the issuance and sale thereof.
(2) In the case of the issuance of Common Stock for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the fair value thereof as determined in good faith by the Board of Directors of the Corporation.
(3) In the case of the issuance of (i) options to purchase or rights to subscribe for Common Stock (other than Excluded Stock), (ii) securities by their terms convertible or exchangeable for Common Stock (other than Excluded Stock), or (iii) options to purchase or rights to subscribe for such Excess Payments convertible or exchangeable securities:
(C) the aggregate maximum number of shares of Common Stock deliverable upon exercise of such options to purchase or rights to subscribe for Common Stock shall be deemed to be issuable for a consideration equal to the consideration (determined in the manner provided in subdivisions (1) and such cash distributions(2) above), if any, applicable to one share received by the Corporation upon the issuance of such options or rights plus the minimum purchase price provided in such options or rights for the Common stock covered thereby;
(D) the aggregate maximum number of shares of Common Stock (deliverable upon conversion of or in exchange for any such convertible or exchangeable securities, or upon the exercise of options to purchase or rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof, shall be deemed to be issuable for a consideration equal to the aggregate amount consideration received by the Corporation for any such securities and related options or rights, plus the additional consideration, if any, to be received by the Corporation upon the conversion or exchange of such Excess Payments securities or the exercise of any related options or rights (the consideration in each case to be determined in the manner provided in subdivisions (1) and (2) above);
(E) the aggregate maximum number of shares of Common Stock deliverable upon exercise of such cash distributions divided options or rights or upon conversion of or in exchange for such convertible or exchangeable securities upon the exercise of options to purchase or rights to subscribe for such convertible or exchangeable securities and subsequent conversion or exchange thereof, shall be deemed to have been issued at the time such options or rights or securities were issued, provided that the consideration for which such Common Stock is deemed to be issuable does not exceed the issuance price of securities issued in the latest bona fide round of financing by the Corporation;
(F) on any change in the number of shares of Common Stock outstanding deliverable upon exercise of any such options or rights or conversion of or exchange for such convertible or exchangeable securities, or on any change in the minimum purchase price of such options, rights or securities, other than a change resulting from the antidilution provisions of such options, rights or securities, the Conversion Price shall forthwith be readjusted to such Conversion Price as would have obtained had the adjustment (and any subsequent adjustments) made upon (x) the issuance of such options, rights or securities not exercised, converted or exchanged prior to such change, as the case may be, been made upon the basis of such change or (y) the options or rights related to such securities not converted or exchanged prior to such change, as the case may be, been made upon the basis of such change; and
(G) on the Purchase Date) and expiration of any such options or rights, the denominator shall be termination of any such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction rights to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the convert or exchange or market referred the expiration of any options or rights related to in determining such Daily Market Prices prior convertible or exchangeable securities, the Conversion Price shall forthwith be readjusted to such Conversion Price as would have obtained had the time adjustment (and any subsequent adjustments) made upon the issuance of determination such options, rights, convertible or (ii) exchangeable securities or options or rights related to such convertible or exchangeable securities, as the period commencing on case may be, been made upon the date next succeeding the first public announcement basis of the issuance of only the number of shares of Common Stock actually issued upon the exercise of such options or rights, upon the conversion or exchange of such convertible or exchangeable securities or upon the exercise of the options or rights related to such convertible or such warrants or such other distribution or such negotiated transaction through such last full trading day on exchangeable securities, as the exchange or market referred to in determining such Daily Market Prices prior to the time of determinationcase may be.
Appears in 2 contracts
Sources: Stock Purchase Agreement (SQL Financials International Inc /De), Stock Purchase Agreement (SQL Financials International Inc /De)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment adjusted from time to time by the Company as follows:
(a) In case the Company shall (1i) pay a dividend on its Common Stock in shares of Common Stock to holders of Common Stock, (2ii) make a distribution on its Common Stock in shares of Common Stock to holders of Common Stock, (3iii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock shares, or (4iv) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stockshares, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which he it would have owned immediately following such action had such Securities Security been converted immediately prior theretoto the happening of such event. Any An adjustment made pursuant to this subsection (a) shall become effective immediately on the opening of business after the record date date, in the case of a dividend or distribution distribution, and shall become effective immediately on the opening of business after the effective date date, in the case of a subdivision or combination.
(b) In case the Company shall issue rights rights, options or warrants (other than pursuant to a stockholder rights plan) to all or substantially all holders of its Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into or exercisable or exchangeable for Common Stock) at a price per share (or having a conversion, exercise or exchange price per share) less than the Current Market Price per share of Common Stock on the record date with respect to such issuance, (or if no such record date is fixed, the Business Day immediately prior to the date of announcement of such issuance) (treating the conversion, exercise or exchange price per share of such securities convertible into or exercisable or exchangeable for Common Stock as equal to (x) the sum of (i) the price for a unit of such security convertible into or exercisable or exchangeable for Common Stock and (ii) any additional consideration initially payable upon the conversion of such security into or exercise or exchange of such security for Common Stock divided by (y) the number of shares of Common Stock initially underlying such security), the Conversion Price in effect shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the date after such record date (or if no such record date is fixed, the applicable Business Day) by a fraction:
(1) the numerator of which shall be the number of shares of Common Stock outstanding on the close of business on the record date (or, if no such record date is fixed, the date of announcement of such issuance), plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock underlying the rights options, or warrants so issued (or the aggregate conversion, exercise or exchange price of such securities so offered) would purchase at such Current Market Price of the Common Stock; and
(2) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the record date with respect to such issuance (or, if no such record date is fixed, the date immediately prior to the date of announcement of such issuance), plus the total number of additional shares of Common Stock underlying the rights, options or warrants so issued. Such adjustment shall be made successively whenever any such rights, options or warrants are issued, and shall become effective on the day following the date of announcement of such issuance.
(i) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of Capital Stock of the Company (other than Common Stock), evidences of indebtedness or other non-cash assets (including securities of any person other than the Company but excluding (1) the portion of any dividends or distributions paid in cash, (2) dividends or distributions referred to in subsection (a) of this Section 13.06 or (3) distributions made in connection with the liquidation, dissolution or winding up of the Company), or shall distribute to all or substantially all holders of its Common Stock rights, options or warrants to subscribe for or purchase any of its securities (excluding those rights, options and warrants referred to in subsection (b) of this Section 13.06 and also excluding the distribution of rights to all holders of Common Stock pursuant to subsection a Rights Plan or the detachment of such rights to the extent set forth in the second following paragraph), then, in each such case, the Conversion Price shall be adjusted to equal the price determined by multiplying the current Conversion Price by a fraction of which:
(f1) below) 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 on such record date (as determined by the Board of 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 and the Conversion Agent) of the portion of the distributed assets (other than cash) 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
(2) the denominator of which shall be such Current Market Price on such record date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution.
(ii) In the event that the Company has in effect a preferred shares rights plan (“Rights Plan”), upon conversion of the Securities into Common Stock, to the extent that the Rights Plan is still in effect upon such conversion, the Holders will receive, in addition to the Common Stock, the rights described therein (whether or not the rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in the Rights Plan. If the Rights Plan provides that upon separation of rights under such plan from the Company’s Common Stock that the Holders would not be entitled to receive any such rights in respect of the Common Stock issuable upon conversion of the Securities, the Conversion Price will be adjusted as provided in this Section 13.06(c) (with such separation deemed to be the distribution of such rights), subject to readjustment in the event of the expiration, termination or redemption of the rights. Any distribution of rights or warrants pursuant to a Rights Plan that would allow a Holder to receive upon conversion, in addition to the Common Stock, the rights described therein (whether or not the rights have separated from the Common Stock at the time of conversion), shall not constitute a distribution of rights, options or warrants pursuant to this Article XIII.
(iii) Rights, options 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, options 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 13.06 (and no adjustment to the Conversion Price under this Section 13.06 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options 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 clause (c) of Section 13.06. If any such right or warrant, including any such existing rights, options or warrants distributed prior to the Original Issue Date, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and 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 13.06 was made, in the case of any such rights, options 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, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase.
(d) In case the Company or any of its Subsidiaries shall purchase any shares of the Company’s Common Stock by means of a tender offer, then, effective immediately prior to the opening of business on the day after the last date (the “Expiration Date”) tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the “Expiration Time”), 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 the close of business on the Expiration Date by a fraction of which which:
(1) the numerator shall be the product of the number of shares of Common Stock outstanding on such record date(including Purchased Shares, plus but excluding any shares held in the number of shares of Common Stock which the aggregate offering price treasury of the offered shares Company) immediately prior to the Expiration Time multiplied by the Current Market Price per share of the Common Stock (or the aggregate conversion price as determined in accordance with clause (e) of the convertible securities so offeredSection 13.06); and
(2) would purchase at such Current Market Price, and of which the denominator shall be the sum of (x) the aggregate consideration (determined as set forth below) payable to stockholders of the Company based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and (y) the product of the number of shares of Common Stock outstanding on such record date plus (less any Purchased Shares and excluding any shares held in the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock treasury of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (bCompany) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be Expiration Time and the Current Market Price per share of Common Stock (as determined as provided in subsection accordance with clause (f) belowof Section 13.06). For purposes of this clause (d) of Section 13.06, the Common Stock on aggregate consideration in any such tender offer shall equal the record date mentioned below less sum of the then aggregate amount of cash consideration and the aggregate fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value thereof and described in a Board Resolution) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 evidenced by an Officers’ Certificate delivered to the expiration or redemption of Trustee and 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: (iAgent) 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions consideration payable in such tender offer. In the event that the Company is obligated to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment purchase shares pursuant to paragraphs (c) any such tender offer, but the Company is permanently prevented by applicable law from effecting any or (e) of this Section all such purchases or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company)any or all such purchases are rescinded, the Conversion Price shall again be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior adjusted to the effectiveness of be the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided would have been in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by effect based upon the number of shares actually purchased. If the application of Common Stock outstanding on this clause (d) of Section 13.06 to any tender offer would result in an increase in the Distribution Record DateConversion Price, no adjustment shall be made for such tender offer under this Section 13.06(d). For purposes of this clause (d) of Section 13.06, the term “tender offer” shall mean and include both tender offers and exchange offers, all references to “purchases” of shares in tender offers (and all similar references) shall mean and include both the purchase of shares in tender offers and the denominator acquisition of shares pursuant to exchange offers, and all references to “tendered shares” (and all similar references) shall be such Current Market Price per share (determined as provided mean and include shares tendered in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Dateboth tender offers and exchange offers.
(e) In case a tender offer or other negotiated transaction made by For the Company or purpose of any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction computation under clauses (b) and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date13.06, the Conversion Price shall be reduced so that current market price (the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "“Current Market Price" ”) per share of Common Stock on any date shall be deemed to be the average of the Daily Market daily Closing Prices for the shorter ten (10) consecutive Trading Days commencing 11 Trading Days before the record date with respect to distributions, issuances or other events requiring such computation under Section 13.06. For purposes of any computation under subsection (id) 30 of this Section 13.06, the Current Market Price per share of Common Stock shall be deemed to be the arithmetic average of the daily Closing Prices for the ten (10) consecutive Business Trading Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date Trading Day next succeeding the first public announcement Expiration Date.
(f) For the purpose of the issuance of such rights or such warrants or such other this Section 13.06, “record date” shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of stockholders entitled to receive such negotiated transaction through cash, securities or other property (whether such last full trading day on date is fixed by the exchange Board of Directors or market referred to in determining such Daily Market Prices prior to the time of determinationby statute, contract or otherwise).
Appears in 2 contracts
Sources: Indenture (Vector Group LTD), Indenture (Vector Group LTD)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment adjusted from time to time by the Company as follows:
(a) In case the Company shall (1i) pay a dividend on its Common Stock in shares of Common Stock to holders of Common Stock, (2ii) make a distribution on its Common Stock in shares of Common Stock to holders of Common Stock, (3iii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock shares, or (4iv) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stockshares, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which he it would have owned immediately following such action had such Securities Security been converted immediately prior theretoto the happening of such event. Any An adjustment made pursuant to this subsection (a) shall become effective immediately on the opening of business after the record date in the case of a dividend or distribution and shall become effective immediately on the opening of business after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights rights, options or warrants (other than pursuant to a stockholder rights plan) to all or substantially all holders of its Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into or exercisable or exchangeable for Common Stock) at a price per share (or having a conversion , exercise or exchange price per share) less than the Current Market Price per share of Common Stock on the record date with respect to such issuance, (or if no such record date is fixed, the Business Day immediately prior to the date of announcement of such issuance) (treating the conversion, exercise or exchange price per share of the securities convertible into or exercisable or exchangeable for Common Stock as equal to (x) the sum of (i) the price for a unit of the security convertible into or exercisable or exchangeable for Common Stock and (ii) any additional consideration initially payable upon the conversion of such security into or exercise or exchange of such security for Common Stock divided by (y) the number of shares of Common Stock initially underlying such security), the Conversion Price in effect shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the date after such record date (or if no such record date is fixed, the applicable Business Day) by a fraction:
(1) the numerator of which shall be the number of shares of Common Stock outstanding on the close of business on the record date (or if no such record date is fixed, the date of announcement of such issuance), plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock underlying the rights options, or warrants so issued (or the aggregate conversion, exercise or exchange price of the securities so offered) would purchase at such Current Market Price of the Common Stock; and
(2) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the record date with respect to such issuance (or if no such record date is fixed, the date immediately prior to the date of announcement of such issuance), plus the total number of additional shares of Common Stock underlying the rights, options or warrants so issued. Such adjustment shall be made successively whenever any such rights, options or warrants are issued, and shall become effective on the day following the date of announcement of such issuance.
(i) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of Capital Stock of the Company (other than Common Stock), evidences of indebtedness or other non-cash assets (including securities of any person other than the Company but excluding (1) the portion of any dividends or distributions paid in cash, (2) dividends or distributions referred to in subsection (a) of this Section 13.06 or (3) distributions made in connection with the liquidation, dissolution or winding up of the Company), or shall distribute to all or substantially all holders of its Common Stock rights, options or warrants to subscribe for or purchase any of its securities (excluding those rights, options and warrants referred to in subsection (b) of this Section 13.06 and also excluding the distribution of rights to all holders of Common Stock pursuant to subsection a Rights Plan or the detachment of such rights to the extent set forth in the second following paragraph), then in each such case the Conversion Price shall be adjusted to equal the price determined by multiplying the current Conversion Price by a fraction of which:
(f1) below) 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 on such record date (as determined by the Board of 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 and the Conversion Agent) of the portion of the distributed assets (other than cash) 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
(2) the denominator of which shall be such Current Market Price on such record date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution.
(ii) In the event that the Company has in effect a preferred shares rights plan ("RIGHTS PLAN"), upon conversion of the Securities into Common Stock, to the extent that the Rights Plan is still in effect upon such conversion, the Holders will receive, in addition to the Common Stock, the rights described therein (whether or not the rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in the Rights Plan. If the Rights Plan provides that upon separation of rights under such plan from the Company's Common Stock that the Holders would not be entitled to receive any such rights in respect of the Common Stock issuable upon conversion of the Securities, the Conversion Price will be adjusted as provided in this Section 13.06(c) (with such separation deemed to be the distribution of such rights), subject to readjustment in the event of the expiration, termination or redemption of the rights. Any distribution of rights or warrants pursuant to a Rights Plan that would allow a Holder to receive upon conversion, in addition to the Common Stock, the rights described therein (whether or not the rights have separated from the Common Stock at the time of conversion), shall not constitute a distribution of rights, options or warrants pursuant to this Article XIII.
(iii) Rights, options 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, options 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 13.06 (and no adjustment to the Conversion Price under this Section 13.06 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options 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 clause (c) of Section 13.06. If any such right or warrant, including any such existing rights, options or warrants distributed prior to the Original Issue Date, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and 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 13.06 was made, in the case of any such rights, options 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, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase.
(d) In case the Company or any of its Subsidiaries shall purchase any shares of the Company's Common Stock by means of a tender offer, then, effective immediately prior to the opening of business on the day after the last date (the "EXPIRATION DATE") tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the "EXPIRATION TIME"), 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 the close of business on the Expiration Date by a fraction of which which:
(1) the numerator shall be the product of the number of shares of Common Stock outstanding on such record date, plus (including Purchased Shares but excluding any shares held in the number of shares of Common Stock which the aggregate offering price treasury of the offered shares Company) immediately prior to the Expiration Time multiplied by the Current Market Price per share of the Common Stock (or the aggregate conversion price as determined in accordance with clause (e) of the convertible securities so offeredSection 13.06); and
(2) would purchase at such Current Market Price, and of which the denominator shall be the sum of (x) the aggregate consideration (determined as set forth below) payable to stockholders of the Company based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "PURCHASED SHARES") and (y) the product of the number of shares of Common Stock outstanding on such record date plus (less any Purchased Shares and excluding any shares held in the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock treasury of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (bCompany) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be Expiration Time and the Current Market Price per share of Common Stock (as determined as provided in subsection accordance with clause (f) belowof Section 13.06). For purposes of this clause (d) of Section 13.06, the Common Stock on aggregate consideration in any such tender offer shall equal the record date mentioned below less sum of the then aggregate amount of cash consideration and the aggregate fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value thereof and described in a Board Resolution) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 evidenced by an Officers' Certificate delivered to the expiration or redemption of Trustee and 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: (iAgent) 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions consideration payable in such tender offer. In the event that the Company is obligated to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment purchase shares pursuant to paragraphs (c) any such tender offer, but the Company is permanently prevented by applicable law from effecting any or (e) of this Section all such purchases or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company)any or all such purchases are rescinded, the Conversion Price shall again be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior adjusted to the effectiveness of be the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided would have been in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by effect based upon the number of shares actually purchased. If the application of Common Stock outstanding on this clause (d) of Section 13.06 to any tender offer would result in an increase in the Distribution Record DateConversion Price, no adjustment shall be made for such tender offer under this Section 13.06(d). For purposes of this clause (d) of Section 13.06, the term "tender offer" shall mean and include both tender offers and exchange offers, all references to "purchases" of shares in tender offers (and all similar references) shall mean and include both the purchase of shares in tender offers and the denominator acquisition of shares pursuant to exchange offers, and all references to "tendered shares" (and all similar references) shall be such Current Market Price per share (determined as provided mean and include shares tendered in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Dateboth tender offers and exchange offers.
(e) In case a tender offer or other negotiated transaction made by For the Company or purpose of any Subsidiary computation under clauses (b) and (c) of Section 13.06, the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be market price (the "Purchase DateCURRENT MARKET PRICE"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market daily Closing Prices for the shorter ten consecutive Trading Days commencing 11 Trading Days before the record date with respect to distributions, issuances or other events requiring such computation under Section 13.06. For purposes of any computation under subsection (id) 30 of this Section 13.06, the Current Market Price per share of Common Stock shall be deemed to be the arithmetic average of the daily Closing Prices for the ten consecutive Business Trading Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date Trading Day next succeeding the first public announcement Expiration Date.
(f) For the purpose of the issuance of such rights or such warrants or such other this Section 13.06, "record date" shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of stockholders entitled to receive such negotiated transaction through cash, securities or other property (whether such last full trading day on date is fixed by the exchange Board of Directors or market referred to in determining such Daily Market Prices prior to the time of determinationby statute, contract or otherwise).
Appears in 1 contract
Sources: Indenture (Vector Group LTD)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1i) pay issue Common Stock as a dividend in or distribution on its capital stock, including the Common Stock, (ii) combine its outstanding shares of Common Stock to holders into a smaller number of Common Stockshares, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3iii) subdivide its outstanding shares of Common Stock into a greater number of shares, or (iv) issue by reclassification of its Common Stock any shares of Common Stock or (4) combine its outstanding shares capital stock of Common Stock into a smaller number of shares of Common Stockthe Company, the Conversion Price conversion price in effect immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he or other capital stock of the Company that it would have owned or been entitled to receive immediately following such action had such Securities Security been converted immediately prior theretoto the occurrence of such action. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date date, in the case of a dividend or distribution and shall become effective distribution, or immediately after the effective date date, in the case of a subdivision subdivision, combination or combinationreclassification. If, as a result of an adjustment made pursuant to this subsection (a), the holder of any Securities thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of capital stock or shares of Common Stock and other capital stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed by the Company with the Trustee and with any conversion agent as soon as practicable) shall determine the allocation of the adjusted conversion price between or among shares of such classes of capital stock or shares of Common Stock and other capital stock.
(b) In case the Company shall issue rights rights, warrants or warrants options to substantially all holders of its outstanding shares of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price per share (as determined pursuant to subsection (f) belowof this Section 1304) of the Common Stock on such record dateStock, the Conversion Price conversion price in effect immediately prior thereto shall be adjusted so that the same it shall equal the price determined by multiplying the Conversion Price conversion price in effect immediately prior to the date of issuance of such record date rights, warrants or options by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on the date of issuance of such record daterights, warrants or options (immediately prior to such issuance) plus the number of shares of Common Stock which that the aggregate offering price of the total number of shares so offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on the date of issuance of such record date rights, warrants or options (immediately prior to such issuance) plus the number of additional shares of Common Stock offered (for subscription or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall be made successively whenever any rights, warrants or options are issued, and shall become effective immediately after the record date for the determination of shareholders entitled to receive such record daterights, warrants or options. In determining whether any rights, warrants or options 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 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 shall be described in a certificate filed by the Company with the Trustee and with any conversion agent as soon as practicable); provided, however, that rights, warrants or options issued by the Company to all holders of its Common Stock entitling the holders thereof to subscribe for or purchase shares of Common Stock, which rights, warrants or options (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 issuance of Common Stock, in each case in clauses (i) through (iii) until the occurrence of a specified event or events, shall, for purposes of this Section 1304, not be deemed issued until the occurrence of the earliest such specified event.
(c) In case the Company shall distribute to all holders of its outstanding Common Stock any shares of any class of Capital Stock of the Company capital stock (other than Common Stock), evidences of its indebtedness or other assets (other than including securities and cash, but excluding any regular periodic cash dividend paid from surplus of the Company and dividends out or distributions payable in stock for which adjustment is made pursuant to subsection (a) of current this Section 1304) or retained earnings)rights, warrants or shall distribute to substantially all holders of Common Stock rights or warrants options to subscribe for or purchase securities of the Company (other than excluding those Securities referred to in subsection (b) aboveof this Section 1304), then in each such case the Conversion Price conversion price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price conversion price in effect immediately prior to the record date of such distribution by a fraction of which the numerator shall be the Current Market Price per share (as determined as provided in pursuant to the subsection (f) belowof this Section 1304) of the Common Stock on the record date mentioned below less the then fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and shall be described in a Board Resolutioncertificate filed by the Company with the Trustee and with any conversion agent as soon as practicable) of the portion of the capital stock or the evidences of indebtedness or the assets so distributed to the holder of one share of Common Stock or of such subscription rights rights, warrants or warrants options applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price per share of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock shareholders entitled to receive such distribution. Notwithstanding the foregoing; provided, in case however, that rights, warrants or options issued by the Company shall issue rights or warrants to all holders of its Common Stock entitling the holders thereof to subscribe for additional or purchase shares of securities of the Company's capital stock Company (other than excluding those referred to in subsection (b) aboveof this Section 1304), which rights, warrants or options (i) ("Rights") are deemed to substantially all holders be transferred with such shares of Common Stock, the Company may(ii) are not exercisable and (iii) are also issued in respect of future issuance of Common Stock, in lieu of making any adjustment pursuant to this Section 1407, 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, case in addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: clauses (i) if such conversion occurs on or prior to through (iii) until 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 occurrence of a number specified event or events, shall, for purposes of shares of Common Stock equal to this Section 1304, not be deemed issued until the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder occurrence 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 Rightsearliest such specified event.
(d) In case the Company shall, by dividend or otherwise, at any time distribute make a distribution to all holders of its the Common Stock consisting exclusively of cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant referred to paragraph in subsection (c) of this SectionSection 1304 or in connection with a transaction to which Section 1311 applies) in an aggregate amount that, together with the sum of (xA) the aggregate amount of any other distributions to all holders of its the Common Stock made exclusively in cash plus (yexcluding any cash distributions referred to in subsection (c) all Excess Payments, of this Section 1304 or in each case connection with a transaction to which Section 1311 applies) made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price conversion price adjustment pursuant to paragraphs this subsection (cd) has been made and (B) 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 shall be described in a certificate filed by the Company with the Trustee and with any conversion agent as soon as practicable) of other consideration payable in respect of any previous tender offer by the Company or a Subsidiary for the Common Stock consummated within the 12 months preceding such distribution and in respect of which no adjustment pursuant to subsection (e) of this Section or this paragraph (d) 1304 has been made, exceeds 1510% of the product of the Current Market Price per share (determined as provided in paragraph pursuant to subsection (f) of this SectionSection 1304) of the Common Stock on the Distribution Record Date multiplied by date fixed for determining the shareholders entitled to such distribution times the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company)such date, the Conversion Price conversion price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price the conversion price in effect immediately prior to the effectiveness Close of the Conversion Price reduction contemplated by this paragraph (d) Business on such date of determination by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph pursuant to subsection (f) of this SectionSection 1304) of the Common Stock on the Distribution Record Date such date of determination less the amount of cash to be distributed at such cash and other consideration (including any Excess Payments) so distributed time applicable to one share of Common Stock and the denominator of which shall be such Current Market Price, such reduction to become effective immediately prior to the opening of business on the day after such date of determination.
(equal e) 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 in good faith by the Board of Directors, whose determination shall be conclusive and shall be described in a certificate filed by the Company with the Trustee and with any conversion agent as soon as practicable) on the last time (the "Expiration Time") tenders may be made pursuant to such tender offer (as it may have been amended) that, together with (X) 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 shall be described in a certificate filed by the Company with the Trustee and with any conversion agent as soon as practicable), of other consideration paid or payable in respect of any previous tender offer by the Company or a Subsidiary for all or any portion of the Common Stock consummated within the 12 months preceding the consummation of such tender offer and in respect of which no conversion price adjustment pursuant to this paragraph (e) has been made, such cash plus the fair market value of other consideration to be calculated in each case as of the expiration of each such previous tender offer, and (Y) the aggregate amount of all cash distributions to holders of Common Stock (excluding any cash that is distributed as part of a distribution referred to in subsection (c) of this Section 1304) within the 12 months preceding the consummation of such cash tender offer and other consideration in respect of which no conversion price adjustment pursuant to this paragraph (including any Excess Paymentse) divided by has been made, exceeds 10% of the product of the Current Market Price per share (determined pursuant to subsection (f) of this Section 1304) of the Common Stock at the Expiration Time times the number of shares of Common Stock outstanding on (including any tendered shares) at the Distribution Record Date) and Expiration Time, the denominator conversion price shall be such 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 pursuant to subsection (f) of this SectionSection 1304) of the Common Stock at the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) at the Expiration Time minus (ii) the fair market value (determined as aforesaid) of the aggregate consideration paid or payable to shareholders based on the Distribution Record Datenumber of validly tendered shares to be purchased and not withdrawn prior to the Expiration Time (the number of shares so purchased being hereinafter referred to as the "Purchased Shares") and the denominator of which 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 Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase DateExpiration Time.
(f) The "For the purpose of any computation under subsections (b), (c), (d) and (e) of this Section 1304, the Current Market Price" Price per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time Time of determination Determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or warrants, such warrants distribution, or such other distribution or such negotiated transaction tender offer, as the case may be, through such last full trading day on the exchange or market referred to in determining such Daily Market Prices Trading Day prior to the Time of Determination.
(g) In any case in which this Section 1304 shall require that an adjustment be made immediately following a record date or an effective date, the Company may elect to defer (but only until five Business Days following the filing by the Company with the Trustee and any conversion agent of the certificate required by Section 1305) issuing to the holder of any Security converted after such record date or effective date the shares of Common Stock issuable upon such conversion over and above the shares of Common Stock issuable upon such conversion on the basis of the conversion price prior to adjustment, and paying to such holder any amount of cash in lieu of a fractional share.
(h) No adjustment in the conversion price shall be required to be made unless such adjustment would require an increase or decrease of at least 1% of such price; provided, however, that any adjustments that by reason of this subsection (h) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 1304 shall be made to the nearest cent or to the nearest 1/100th of a share, as the case may be. Anything in this Section 1304 to the contrary notwithstanding, the Company shall be entitled to make such reduction in the conversion price, in addition to those adjustments required by this Section 1304, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock or securities or distribution of securities convertible into or exchangeable for stock hereafter made by the Company to its shareholders shall not be taxable to the recipients.
(i) In the event that at any time as a result of determinationan adjustment made pursuant to subsection (a) of this Section 1304, the holder of any Security thereafter surrendered for conversion shall become entitled to receive any shares of the Company other than shares of Common Stock, thereafter the conversion price of such other shares so receivable upon conversion of any Security shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to Common Stock contained in this Article Thirteen.
Appears in 1 contract
Sources: Indenture (Kent Electronics Corp)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or (4) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of any Security Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he or she would have owned immediately following such action had such Securities Notes been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights rights, warrants or warrants options to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights rights, warrants or warrants options and expiring not more than 45 days after such record date) 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 current market price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Pricecurrent market price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company stock other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights rights, warrants or warrants options to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights rights, warrants or warrants options applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price current market price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the event that the Company shall issue rights distribute rights, warrants or warrants to subscribe for additional shares of the Company's capital stock options (other than those referred to in subsection (b) above) ("Rights") pro rata to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 140711.4, make proper provision so that each holder of a Security Note who converts is required to convert such Security Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of 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 (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 Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 1510% of the product of the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by times the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share (based on the pro rata portion of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) ), divided by the number of shares of Common Stock outstanding on the Distribution Record Date) of Common Stock and the denominator shall be such Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (specifically including any distributions of cash out of current or retained earnings of the Companyearnings), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 1510% of the product of the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by times the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share (based on the pro rata portion of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions distributions, divided by the number of shares of Common Stock outstanding on the Purchase Date) of Common Stock and the denominator shall be such Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" current market price per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights rights, warrants or such warrants options or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
(g) In any case in which this Section 11.4 shall require that an adjustment be made immediately following a record date, 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 11.8 below) issuing to the holder of any Note converted after such record date the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion over and above the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence of the right to receive such shares.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment adjusted from time to time by the Company as follows:
(a) In case the Company shall (1i) pay a dividend on its Common Stock in shares of Common Stock to holders of Common Stock, (2ii) make a distribution on its Common Stock in shares of Common Stock to holders of Common Stock, (3iii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock shares, or (4iv) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stockshares, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which he it would have owned immediately following such action had such Securities Security been converted immediately prior theretoto the happening of such event. Any An adjustment made pursuant to this subsection (a) shall become effective immediately on the opening of business after the record date in the case of a dividend or distribution and shall become effective immediately on the opening of business after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights rights, options or warrants (other than pursuant to a stockholder rights plan) to all or substantially all holders of its Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into or exercisable or exchangeable for Common Stock) at a price per share (or having a conversion , exercise or exchange price per share) less than the Current Market Price per share of Common Stock on the record date with respect to such issuance, (or if no such record date is fixed, the Business Day immediately prior to the date of announcement of such issuance) (treating the conversion, exercise or exchange price per share of the securities convertible into or exercisable or exchangeable for Common Stock as equal to (x) the sum of (i) the price for a unit of the security convertible into or exercisable or exchangeable for Common Stock and (ii) any additional consideration initially payable upon the conversion of such security into or exercise or exchange of such security for Common Stock divided by (y) the number of shares of Common Stock initially underlying such security), the Conversion Price in effect shall be adjusted so that the Conversion Price shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the date after such record date (or if no such record date is fixed, the applicable Business Day) by a fraction:
(1) the numerator of which shall be the number of shares of Common Stock outstanding on the close of business on the record date (or if no such record date is fixed, the date of announcement of such issuance), plus the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock underlying the rights options, or warrants so issued (or the aggregate conversion, exercise or exchange price of the securities so offered) would purchase at such Current Market Price of the Common Stock; and
(2) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the record date with respect to such issuance (or if no such record date is fixed, the date immediately prior to the date of announcement of such issuance), plus the total number of additional shares of Common Stock underlying the rights, options or warrants so issued. Such adjustment shall be made successively whenever any such rights, options or warrants are issued, and shall become effective on the day following the date of announcement of such issuance.
(i) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of Capital Stock of the Company (other than Common Stock), evidences of indebtedness or other non-cash assets (including securities of any person other than the Company but excluding (1) the portion of any dividends or distributions paid in cash, (2) dividends or distributions referred to in subsection (a) of this Section 13.06 or (3) distributions made in connection with the liquidation, dissolution or winding up of the Company), or shall distribute to all or substantially all holders of its Common Stock rights, options or warrants to subscribe for or purchase any of its securities (excluding those rights, options and warrants referred to in subsection (b) of this Section 13.06 and also excluding the distribution of rights to all holders of Common Stock pursuant to subsection a Rights Plan or the detachment of such rights to the extent set forth in the second following paragraph), then in each such case the Conversion Price shall be adjusted to equal the price determined by multiplying the current Conversion Price by a fraction of which:
(f1) below) 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 on such record date (as determined by the Board of 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 and the Conversion Agent) of the portion of the distributed assets (other than cash) 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
(2) the denominator of which shall be such Current Market Price on such record date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution.
(ii) In the event that the Company has in effect a preferred shares rights plan ("RIGHTS PLAN"), upon conversion of the Securities into Common Stock, to the extent that the Rights Plan is still in effect upon such conversion, the Holders will receive, in addition to the Common Stock, the rights described therein (whether or not the rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in the Rights Plan. If the Rights Plan provides that upon separation of rights under such plan from the Company's Common Stock that the Holders would not be entitled to receive any such rights in respect of the Common Stock issuable upon conversion of the Securities, the Conversion Price will be adjusted as provided in this Section 13.06(c) (with such separation deemed to be the distribution of such rights), subject to readjustment in the event of the expiration, termination or redemption of the rights. Any distribution of rights or warrants pursuant to a Rights Plan that would allow a Holder to receive upon conversion, in addition to the Common Stock, the rights described therein (whether or not the rights have separated from the Common Stock at the time of conversion), shall not constitute a distribution of rights, options or warrants pursuant to this Article XIII.
(iii) Rights, options 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, options 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 13.06 (and no adjustment to the Conversion Price under this Section 13.06 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options 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 clause (c) of Section 13.06. If any such right or warrant, including any such existing rights, options or warrants distributed prior to the Original Issue Date, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and 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 13.06 was made, in the case of any such rights, options 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, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase.
(d) In case the Company or any of its Subsidiaries shall purchase any shares of the Company's Common Stock by means of a tender offer, then, effective immediately prior to the opening of business on the day after the last date (the "EXPIRATION DATE") tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the "EXPIRATION TIME"), 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 the close of business on the Expiration Date by a fraction of which which:
(1) the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares Purchased Shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated Expiration Time multiplied by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock (as determined in accordance with clause (e) of Section 13.06); and
(2) the denominator shall be the sum of (x) the aggregate consideration (determined as set forth below) payable to stockholders of the Company based on the Purchase Date less acceptance (up to any maximum specified in the amount 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 Excess Payments maximum, being referred to as the "PURCHASED SHARES") and such cash distributions, if any, applicable to one share (y) the product of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on (less any Purchased Shares and excluding any shares held in the Purchase Datetreasury of the Company) immediately prior to the Expiration Time and the denominator shall be such Current Market Price per share of Common Stock (as determined as provided in paragraph accordance with clause (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase DateSection 13.06).
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
Appears in 1 contract
Sources: Indenture (Vector Group LTD)
Adjustment of Conversion Price. The conversion price or rate (herein called the "Conversion Price Price") for a series of Securities shall be as set forth in a Board Resolution, Officer's Certificate or executed supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to which the form and terms of the Securities of such series were established, and, except as otherwise provided therein, shall be subject to adjustment from time to time as follows:
(a) In case the Company Issuer shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) or make a distribution in shares of Common Stock to holders of on the Common Stock, (32) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or shares, (43) combine its outstanding shares of Common Stock into a smaller number of shares, (4) issue by reclassification of its Common Stock any shares of Common Stockcapital stock of the Issuer or (5) redeem any Associated Rights, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other capital stock of the Issuer which he would have owned immediately following such action had such Securities Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (e) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification. If as a result of an adjustment made pursuant to this subsection (a), the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of capital stock (including shares of Common Stock and other capital stock) of the Issuer, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed with the Trustee) shall determine the allocation of the adjusted Conversion Price between or among shares of such classes of capital stock or shares of Common Stock and other capital stock.
(b) In case the Company Issuer shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than exceeding 45 days after from the date of such record dateissuance) 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 current market price per share (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (fd) below) of the Common Stock on the record date mentioned below less below, the then fair market value (as Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by multiplying:
(1) the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described Conversion Price in a Board Resolution) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective effect immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 issuance of such conversion in accordance with the terms and provisions rights or warrants by a fraction, of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of 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.which
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x2) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus numerator shall be (yA) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date date of issuance of such rights or warrants, immediately prior to such issuance, plus (excluding B) the number of shares held in which the treasury aggregate offering price of the Company), the Conversion Price shall be reduced total number of shares so that the same shall equal the offered for subscription or purchase would purchase at such current market price (determined by multiplying such Conversion Price in effect immediately prior to total number of shares by the effectiveness exercise price of such rights or warrants and dividing the Conversion Price reduction contemplated product so obtained by this paragraph such current market price), and of which
(d3) by a fraction of which the numerator denominator shall be the Current Market Price per share (determined as provided in paragraph (fA) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices warrants, immediately prior to the time of determination.such
Appears in 1 contract
Sources: Senior Subordinated Indenture (Service Corporation International)
Adjustment of Conversion Price. (a) The Conversion Price shall be subject to adjustment adjusted from time to time by the Company as follows:
(a) In : in case the Company shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock or (4) combine its 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 be combined into a smaller number of shares of Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock day upon which such combination becomes effective shall be consummatedproportionately increased, if an Excess Payment is made in respect of such tender offer reduction or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offerincrease, as the case may be (the "Purchase Date")be, and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to after the opening of business on the day following the Purchase Dateday upon which such subdivision or combination becomes effective.
(fb) The "Current Market Price" per share No adjustment in the Conversion Price shall be required under this Section 15.6 unless such adjustment would require an increase or decrease of at least one percent (1%) in such price; provided, however, that any adjustments which by reason of this Section 15.6 are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article XV shall be made by the Company and shall be made to the nearest cent or to the nearest one hundredth of a share, as the case may be. No adjustment need be made for a change in the par value or no par value of the Common Stock.
(c) Whenever the Conversion Price is adjusted as provided in this Section 15.6, the Company shall promptly file with the Trustee and any conversion agent other than the Trustee an Officer’s Certificate 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 Company 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 the holder of each Note at his last address appearing on the Note Register provided for in Section 2.5, within five (5) Business Days of the effective date of such adjustment. Failure to deliver such notice shall not effect the legality or validity of any such adjustment.
(d) In any case in which this Section 15.6 provides that an adjustment shall become effective immediately after a record date for an event, the Company may defer until the occurrence of such event (i) issuing to the holder of any Note converted after such Record Date and before the occurrence of such event the additional shares of Common Stock on any date shall be deemed to be the average issuable upon such conversion by reason of the Daily Market Prices for adjustment required by such event over and above the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred Common Stock issuable upon such conversion before giving effect to in determining such Daily Market Prices prior to the time of determination or adjustment and (ii) the period commencing on the date next succeeding the first public announcement paying to such holder any amount in cash in lieu of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred any fraction pursuant to in determining such Daily Market Prices prior to the time of determinationSection 15.4.
Appears in 1 contract
Sources: Indenture (Electroglas Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment adjusted from time to time as follows:
(a) In case the Company shall hereafter (1i) pay a dividend or make a distribution on its Common Stock in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3ii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or shares, (4iii) combine its outstanding shares of Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of Common StockCapital Stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other Capital Stock of the Company which it, he or she would have owned immediately following such action had such Securities Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date Record Date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification. If, as a result of an adjustment made pursuant to this subsection (a), the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of Capital Stock or shares of Common Stock and other Capital Stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed with the Trustee and with the Registrar) shall determine in an equitable manner the allocation of the adjusted Conversion Price between or among shares of such classes of Capital Stock or shares of Common Stock and other Capital Stock.
(b) In case the Company shall hereafter issue rights or warrants to substantially all holders of its outstanding shares of Common Stock generally entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than within 45 days after such record datethe Record Date mentioned below) 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 (as determined pursuant to subsection (f) below) per share of the Common Stock on such record datethe Record Date mentioned below, the Conversion Price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of issuance of such record date rights or warrants by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on the date of issuance of such record date, rights or warrants plus the number of shares of Common Stock which the aggregate offering price of the total number of shares so offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on the date of issuance of such record date rights or warrants plus the number of additional shares of Common Stock offered (for subscription or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall become effective immediately after the Record Date for the determination of shareholders entitled to receive such record daterights or warrants.
(c) In case the Company shall hereafter distribute to all holders of its outstanding Common Stock shares generally evidences of its indebtedness or assets (excluding any class of Capital Stock cash dividend paid from retained earnings of the Company other than Common Stock, evidences and dividends or distributions payable in stock for which adjustment is made pursuant to subsection (a) of indebtedness this Section 11.05) or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for to securities of the Company (other than excluding those Securities referred to in subsection (b) aboveof this Section 11.05), then in each such case the Conversion Price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) per share of the Common Stock on the record date Record Date mentioned below less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and shall be described in a Board Resolutionstatement filed with the Trustee and with the Registrar) of the portion of the evidences of indebtedness or assets so distributed to the holder of one share of Common Stock or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price per share of the Common Stock. Such adjustment shall become effective immediately after the record date Record Date for the determination of the holders of Common Stock shareholders entitled to receive such distribution. Notwithstanding the foregoing.
(d) In any case in which this Section 11.05 shall require that an adjustment be made immediately following a Record Date, in case the Company shall issue rights or warrants may elect to subscribe for additional shares defer (but only until five Business Days following the filing by the Issuer with the Trustee and the Registrar of the Company's capital stock (other than those referred to certificate of independent public accountants described in subsection (bf) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, make proper provision so that each holder of a Security who converts such Security (or any portion thereof11.05) after the record date for such distribution and prior issuing to the expiration or redemption Holder of the Rights shall be entitled to receive upon any Security converted after such conversion, in addition to Record Date the shares of Common Stock issuable upon such conversion over and above the shares of Common Stock issuable upon such conversion on the basis of the Conversion Price prior to adjustment.
(e) No adjustment in the "Conversion Shares"Price shall be required unless such adjustment would require an increase or decrease of at least 1% of such price; provided, however, that any adjustments which by reason of this subsection (e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment, and provided further that adjustment shall be required and made in accordance with the provisions of this Article Eleven (other than this subsection (e)), not later than such time as may be required in order to preserve the tax-free nature of 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 (Securities or Common Stock. All calculations under this Section 11.05 shall be made to the "Distribution Date"), nearest cent or to the same number of Rights to which a holder nearest 1/100th 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offershare, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of be. Anything in this Section 11.05 to the contrary notwithstanding, the Company shall be entitled to make such reductions in the Conversion Price, in addition to those required by this Section 11.05, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock or this paragraph (e) has been madesecurities, exceeds 15% or distribution of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied securities convertible into or exchangeable for stock hereafter made by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price to its shareholders shall not be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Datetaxable.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be Whenever the average of the Daily Market Prices for the shorter of Conversion Price is adjusted as herein provided, (i) 30 consecutive Business Days ending on the last full Trading Day on Issuer and the exchange or market referred to in determining Company shall promptly file with the Trustee and the Registrar a certificate of a firm of independent public accountants setting forth the Conversion Price after such Daily Market Prices prior to adjustment and setting forth a brief statement of the time facts requiring such adjustment and the manner of determination or computing the same, which certificate shall be conclusive evidence of the correctness of such adjustment and (ii) a notice stating that the period commencing on Conversion Price has been adjusted and setting forth the date next succeeding adjusted Conversion Price shall forthwith be given by the first public announcement of Issuer and the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior Company to the time of determinationHolders in the manner provided in Section 12.
Appears in 1 contract
Sources: Indenture (Toll Brothers Inc)
Adjustment of Conversion Price. The ------------------------------ conversion price (the "Conversion Price Price") shall be subject to adjustment that price set forth in ---------------- paragraph 8 of the form of Security attached hereto as Exhibit A and shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall (1i) pay a dividend or other distribution in shares of Class A Common Stock or other Capital Stock to all or substantially all holders of Class A Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3ii) subdivide its outstanding shares of Class A Common Stock into a greater number of shares of Common Stock or shares, (4iii) combine its outstanding shares of Class A Common Stock into a smaller number of shares of or (iv) reclassify its outstanding Class A Common Stock, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Capital Stock which he it would have owned immediately following such action or have been entitled to receive had such Securities Security been converted immediately prior theretoto the happening of such event. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification.
(b) In case the Company shall issue rights to all or warrants to substantially all holders of its Class A Common Stock Stock, rights, warrants or options entitling them such holders (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants described below and expiring not more than 45 60 days after such record date) 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 current market price per share of Common Stock (as determined pursuant to in accordance with subsection (fe) below) at the record date for the determination of the Common Stock on stockholders entitled to receive such record daterights, warrants or options, the Conversion Price in effect immediately prior thereto shall be adjusted so that the same Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction fraction, the numerator of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering subscription or purchase price for the total number of the offered shares of Common Stock offered by the rights, warrants or options so issued (or the aggregate conversion price of the convertible securities so offeredoffered by such rights, warrants or options) would purchase at such Current Market Pricecurrent market price, and the denominator of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered by such rights, warrants or options (or into which the convertible securities so offered by such rights, warrants or options are convertible). Such adjustments adjustment shall be made successively whenever any such rights, warrants or options are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights, warrants or options are exercisable not all rights, warrants or options shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(c) In case the Company shall distribute to all or substantially all holders of its Class A Common Stock any shares of any class of Capital Stock of the Company (other than Common Stock, ) or evidences of indebtedness its indebtedness, cash, other securities or other assets (other than cash dividends out of current or retained earnings)assets, or shall distribute to all or substantially all holders of its Class A Common Stock rights Stock, rights, warrants or warrants options to subscribe for or purchase any of its securities (other than those Securities excluding (i) rights, options and warrants referred to in subsection (bSection 10.06(b) above; (ii) those dividends, distributions, subdivisions and combinations referred to in Section 10.06(a) above; and (iii) dividends and distributions paid in cash in an aggregate amount that, combined together with (A) all other such cash distributions made within the preceding 12 months in respect of which no adjustment has been made under this Section 10.06 and (B) the fair market value of consideration payable in respect of any repurchases (including by way of tender offers) by the Company or any of its Subsidiaries or Affiliates, of Class A Common Stock concluded within the preceding 12 months, in each case in respect of which no adjustment has been made under this Section 10.06, does not exceed 5% of Class A Market Capitalization as of the record date for such distribution), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction fraction, the numerator of which the numerator shall be the Current Market Price current market price per share (determined as provided defined in subsection (fSection 10.06(e) below) of the Class A Common Stock on the record date mentioned below less the then fair market value on such record date (as determined by the Board of DirectorsDirectors of the Company, whose determination shall be conclusive evidence of such fair market value and described in a Board Resolutionvalue) of the portion of the Capital Stock or evidences of indebtedness, securities or assets so distributed or of such subscription rights rights, warrants or warrants applicable options, in each case as applicable, to one share of Class A Common Stock, and the denominator of which the denominator shall be such Current Market Price the current market price per share (as defined in Section 10.06(e) below) of the Class A Common StockStock on such record date. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock stockholders entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash Subsidiaries shall repurchase (including any by way of tender offer, but excluding shares purchased in connection with the initial offering of the Securities) shares of Class A Common Stock, and the fair market value of the sum of (i) the aggregate consideration paid for such Class A Common Stock, (ii) the aggregate fair market value of cash dividends and distributions of cash out of current or retained earnings the type described in clause (iii) of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to preceding paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made paid within the 12 months preceding the date fixed for determining the stockholders entitled to of purchase of such distribution (the "Distribution Record Date") and shares of Class A Common Stock in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or 10.06 previously has been made, and (iii) the aggregate fair market value of any amounts previously paid for the repurchase of Class A Common Stock of a type described in this paragraph (d) within the 12 months preceding the date of purchase of such shares of Common Stock in respect of which no adjustment pursuant to this Section 10.06 previously has been made, exceeds 155% of the product of the Current Class A Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock Capitalization on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company)date of, and after giving effect to, such repurchase, then the Conversion Price shall be reduced adjusted so that the same shall equal the price determined by multiplying such the Conversion Price in effect immediately prior to the effectiveness date of the Conversion Price reduction contemplated by this paragraph (d) such purchase by a fraction fraction, the numerator of which the numerator shall be the Current Market Price current market price per share (determined as provided defined in paragraph (fSection 10.06(e) of this Sectionbelow) of the Class A Common Stock on the Distribution Record Date date of such repurchase, less the amount of quotient obtained by dividing the Aggregate Market Premium involved in such cash and other consideration repurchase (including any Excess Paymentsas defined hereinafter) so distributed applicable to one share of Common Stock (equal to by the aggregate amount of such cash and other consideration (including any Excess Payments) divided by difference between the number of shares of Common Stock outstanding on before such repurchase and the Distribution Record Date) number of shares of Common Stock the subject of such repurchase, and the denominator of which shall be such Current Market Price the current market price per share (determined as provided defined in paragraph (fSection 10.06(e) of this Sectionbelow) of the Class A Common Stock on the Distribution Record Date, date of such reduction to repurchase. Such adjustment shall become effective immediately prior after the date of such repurchase. For purposes of this subsection (d), the "Aggregate Market Premium" is ------------------------ the excess, if any, of the aggregate repurchase price paid for all such Class A Common Stock over the aggregate current market value per share (as defined in subsection (e) below) of all such repurchased stock, determined with respect to each share involved in each such repurchase as of the opening date of business on the day following the Distribution Record Daterepurchase with respect to such share.
(e) In case someone other than the Company or one of its Subsidiaries makes a payment in respect of a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company exchange offer for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury which, as of the Company or any Subsidiary closing date of the offer, the Company) on 's Board of Directors is not recommending rejection of the Purchase Dateoffer, the Conversion Price shall will be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined adjusted as provided in paragraph subsection (fd) above. The adjustment referred to in this clause will only be made if:
(i) the tender offer or exchange offer is for an amount that increases the offeror's ownership of this Section) common stock to more than 25% of the Common Stock on aggregate ordinary voting power represented by the Purchase Date less Company's issued and outstanding Voting Stock; and
(ii) cash and value of any other consideration included in the amount of such Excess Payments and such cash distributions, if any, applicable to one payment per share of Common Stock (equal to exceeds the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" current market price per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on Day next succeeding the last full Trading Day date on which tenders or exchanges may be made pursuant to the tender or exchange or market offer. However, the adjustment referred to in determining such Daily Market Prices prior to the time of determination or this subsection (iie) the period commencing on the date next succeeding the first public announcement will not be made if as of the issuance closing of such rights the offer, the offering documents disclose a plan or such warrants an intention to cause the Company to engage in a consolidation or such other distribution merger of the Company or such negotiated transaction through such last full trading day on a sale of all or substantially all of the exchange or market referred to in determining such Daily Market Prices prior to the time of determinationCompany's assets.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment adjusted from time to time by the Company as follows:
(a) In case the Company shall (1i) pay a dividend on its Common Stock in shares of Common Stock to holders of Common Stock, (2ii) make a distribution on its Common Stock in shares of Common Stock to holders of Common Stock, (3iii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock shares, or (4iv) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stockshares, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which he it would have owned immediately following such action had such Securities Security been converted immediately prior theretoto the happening of such event. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights rights, options or warrants (other than pursuant to a Rights Plan) to all or substantially all holders of its Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into or exercisable or exchangeable for Common Stock) at a price per share (or having a conversion, exercise or exchange price per share) less than the Closing Price per share of Common Stock on the Business Day immediately prior to the date of announcement of such issuance (treating the conversion, exercise or exchange price per share of the securities convertible into or exercisable or exchangeable for Common Stock as equal to (x) the sum of (i) the price for a unit of the security convertible into or exercisable or exchangeable for Common Stock and (ii) any additional consideration initially payable upon the conversion of such security into or exercise or exchange of such security for Common Stock divided by (y) the number of shares of Common Stock initially underlying such security), the Conversion Price in effect shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price by a fraction:
(1) the numerator of which shall be the number of shares of Common Stock outstanding on the close of business on the date of announcement, 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, exercise or exchange price of the securities so offered) would purchase at such Current Market Price per share of Common Stock; and
(2) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the date of announcement, plus the total number of additional shares of Common Stock so offered for subscription or purchase (or into which the securities so offered are convertible, exercisable or exchangeable). Such adjustment shall be made successively whenever any such rights, options or warrants are issued, and shall become effective on the day following the date of announcement of such issuance.
(i) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of Capital Stock of the Company (other than Common Stock), evidences of indebtedness or other non-cash assets (including securities of any person other than the Company but excluding (1) dividends or distributions paid exclusively in cash, (2) dividends or distributions referred to in subsection (a) of this Section 13.06 or (3) distributions made in connection with the liquidation, dissolution or winding up of the Company), or shall distribute to all or substantially all holders of its Common Stock rights, options or warrants to subscribe for or purchase any of its securities (excluding those rights, options and warrants referred to in subsection (b) of this Section 13.06 and also excluding the distribution of rights to all holders of Common Stock pursuant to a Rights Plan or the detachment of such rights to the extent set forth in the second following paragraph), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the current Conversion Price by a fraction:
(1) the numerator of which shall be the Current Market Price (as determined pursuant to subsection (f) below) per share of the Common Stock on such record date, less the fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and which shall be evidenced by an Officer's Certificate delivered to Trustee) of the portion of the distributed assets 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
(2) the denominator of which shall be such Current Market Price per share of Common Stock on such record date mentioned below. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution.
(ii) In the event that the Company has in effect a preferred shares rights plan ("RIGHTS PLAN"), upon conversion of the Securities into Common Stock, to the extent that the Rights Plan is still in effect upon such conversion, the Holders will receive, in addition to the Common Stock, the rights described therein (whether or not the rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in the Rights Plan. If the Rights Plan provides that upon separation of rights under such plan from the Common Stock that the Holders would not be entitled to receive any such rights in respect of the Common Stock issuable upon conversion of the Securities, the Conversion Price will be adjusted as provided in this Section 13.06(c) (with such separation deemed to be the distribution of such rights), subject to readjustment in the event of the expiration, termination or redemption of the rights. Any distribution of rights or warrants pursuant to a Rights Plan that would allow a Holder to receive upon conversion, in addition to the Common Stock, the rights described therein (whether or not the rights have separated from the Common Stock at the time of conversion), shall not constitute a distribution of rights, options or warrants pursuant to this Article XIII.
(iii) Rights, options 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, options 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 13.06 (and no adjustment to the Conversion Price under this Section 13.06 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options 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 clause (c) of Section 13.06. If any such right or warrant, including any such existing rights, options or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date in respect of 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) in respect thereof that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Price under this Section 13.06 was made, in the case of any such rights, options 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 in respect of such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase.
(d) In case the Company shall, by dividend or otherwise, at any time distribute (a "TRIGGERING DISTRIBUTION") to all or substantially all holders of its Common Stock cash, the Conversion Price shall be decreased so that the same shall equal the rate determined by multiplying such Conversion Price in effect on the Business Day immediately prior to the record date (the "DETERMINATION DATE") declared by the Company for such Triggering Distribution by a fraction of which the numerator shall be the Current Market Price per share of Common Stock on the Determination Date less the aggregate amount of cash so distributable applicable to one share of Common Stock (determined on the basis of the number of shares of Common Stock outstanding on the date such distribution is made), and the denominator shall be the Current Market Price per share of Common Stock on the Determination Date, such increase to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution is paid. It is expressly understood that a stock buyback, repurchase or similar transaction or program shall in no event be considered a Triggering Distribution for purposes of this clause (d) of Section 13.06.
(e) In case the Company or any of its Subsidiaries shall purchase any shares of the Common Stock by means of a tender offer, then, effective immediately prior to the opening of business on the day after the last date (the "EXPIRATION DATE") tenders could have been made pursuant to such tender offer (as it may be amended) (the last time at which such tenders could have been made on the Expiration Date is hereinafter sometimes called the "EXPIRATION TIME"), 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 the close of business on the Expiration Date by a fraction of which which:
(1) the numerator shall be the product of the number of shares of Common Stock outstanding on such record date, plus (including Purchased Shares but excluding any shares held in the number of shares of Common Stock which the aggregate offering price treasury of the offered shares Company) immediately prior to the Expiration Time multiplied by the Current Market Price per share of Common Stock (or the aggregate conversion price as determined in accordance with clause (f) of the convertible securities so offeredSection 13.06); and
(2) would purchase at such Current Market Price, and of which the denominator shall be the sum of (x) the aggregate consideration (determined as set forth below) payable to stockholders of the Company based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "PURCHASED SHARES") and (y) the product of the number of shares of Common Stock outstanding on such record date plus (less any Purchased Shares and excluding any shares held in the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock treasury of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (bCompany) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be Expiration Time and the Current Market Price per share of Common Stock (as determined as provided in subsection accordance with clause (f) belowof Section 13.06). For purposes of this clause (e) of Section 13.06, the Common Stock on aggregate consideration in any such tender offer shall equal the record date mentioned below less sum of the then aggregate amount of cash consideration and the aggregate fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value thereof and described in a Board Resolution) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 evidenced by an Officers' Certificate delivered 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: (iTrustee) 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions consideration payable in such tender offer. In the event that the Company is obligated to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment purchase shares pursuant to paragraphs (c) any such tender offer, but the Company is permanently prevented by applicable law from effecting any or (e) of this Section all such purchases or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company)any or all such purchases are rescinded, the Conversion Price shall again be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior adjusted to the effectiveness of be the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided would have been in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by effect based upon the number of shares of Common Stock outstanding on actually purchased. If the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) application of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
clause (e) In case a of Section 13.06 to any tender offer or other negotiated transaction made by would result in an increase in the Company or any Subsidiary of the Company for all or any portion of the Common Stock Conversion Price, no adjustment shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.such
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case If the Company shall (1i) pay a dividend or other distribution, in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares on any class of Common Capital Stock to holders of Common Stockthe Company, (3ii) subdivide its or split the outstanding shares of Common Stock into a greater number of shares of Common Stock by any means or (4iii) combine its the outstanding shares of Common Stock into a smaller number of shares of Common Stockby any means (including, without limitation, a reverse stock split), then in each such case the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of any Security Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he that such Holder would have owned immediately following or have been entitled to receive upon the happening of such action event had such Securities Note been converted immediately prior theretoto the relevant record date or, if there is no such record date, the effective date of such event. Any An adjustment made pursuant to this subsection (aSection 10.4(a) shall become effective immediately after the record date in for the case determination of a stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a such subdivision or combination, as the case may be.
(b) In case If the Company shall (i) issue rights or warrants to substantially all holders of Common Stock entitling them distribute (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price (as determined pursuant per share of such Capital Stock on the date of such issuance or distribution) Capital Stock generally to subsection (f) below) holders of the Common Stock or to holders of any class or series of Capital Stock which is convertible into or exchangeable or exercisable for Common Stock (excluding an issuance or distribution of Common Stock described in Section 10.4(a)) or (ii) issue or distribute generally to such holders rights, warrants, options or convertible or exchangeable securities entitling the holder thereof to subscribe for, purchase, convert into or exchange for Capital Stock at a price per share less than the Current Market Price per share of such Capital Stock on the date of issuance or distribution, then, in each such case, at the earliest of (A) the date the Company enters into a firm contract for such issuance or distribution, (B) the record datedate for the determination of stockholders entitled to receive any such Capital Stock or any such rights, warrants, options or convertible or exchangeable securities or (C) the date of actual issuance or distribution of any such Capital Stock or any such rights, warrants, options or convertible or exchangeable securities, 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 such record earliest date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.by:
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment adjusted from time to time as follows:
(a) In case the Company shall hereafter (1i) pay a dividend or make a distribution on its Common Stock in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3ii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or shares, (4iii) combine its outstanding shares of Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of Common Stockcapital stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of any Security Debenture thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other capital stock of the Company which he it would have owned immediately following such action had such Securities Debenture been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification. If, as a result of an adjustment made pursuant to this subsection (a), the holder of any Debenture thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of capital stock or shares of Common Stock and other capital stock of the Company, the Board of Directors of the Company (whose determination shall be conclusive) shall determine the allocation of the adjusted Conversion Price between or among shares of such classes of capital stock or shares of Common Stock and other capital stock.
(b) In case the Company shall hereafter issue rights or warrants to substantially all holders of its outstanding shares of Common Stock generally entitling them (for a period commencing no earlier than expiring within 45 days after the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record datementioned below) 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 current market price per share (as determined pursuant to subsection (fd) belowof this Section 6.4) of the Common Stock on such the record datedate mentioned below, the Conversion Price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of issuance of such record date rights or warrants by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on the date of issuance of such record date, rights or warrants plus the number of shares of Common Stock which the aggregate offering price of the total number of shares so offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Pricecurrent market price, and of which the denominator shall be the number of shares of Common Stock outstanding on the date of issuance of such record date rights or warrants plus the number of additional shares of Common Stock offered (for subscription or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such record daterights or warrants.
(c) In case the Company shall hereafter distribute to all holders of its outstanding Common Stock shares generally evidences of its indebtedness or assets (excluding any class of Capital Stock cash dividend paid from retained earnings of the Company other than Common Stock, evidences and dividends or distributions payable in stock from which adjustment is made pursuant to subsection (a) of indebtedness this Section 6.4) or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for to securities of the Company (other than excluding those Securities referred to in subsection (b) aboveof this Section 6.4), then in each such case the Conversion Price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in subsection (fd) belowof this Section 6.4) of the Common Stock on the record date mentioned below less the then 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 Resolutionconclusive) of the portion of the evidences of indebtedness or assets so distributed to the holder of one share of Common Stock or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price current market price per share of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock stockholders entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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.
(d) In case For the Company shall, by dividend or otherwise, at purpose of any time distribute to all holders of its Common Stock cash computation under subsections (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph b) and (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company)6.4, the Conversion Price shall be reduced so that the same shall equal the current market price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices daily market prices for the shorter of twenty (i20) 30 consecutive Business Days ending before the day in question.
(e) In any case in which this Section 6.4 shall require that an adjustment be made immediately following a record date, the Company may elect to defer (but only until five business days following the filing by the Company with the Purchaser of the certificate of independent public accountants described in subsection (g) of this Section 6.4) issuing to the holder of any Debenture converted after such record date the shares of Common Stock issuable upon such conversion over and above the shares of Common Stock issuable upon such conversion on the last full Trading Day on basis of the exchange or market referred to in determining such Daily Market Prices Conversion Price prior to adjustment.
(f) No adjustment in the time Conversion Price shall be required unless such adjustment would require an increase or decrease of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance at least 1% of such rights or price; provided, however, that any adjustments which by reason of this subsection (f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment, and provided further, that adjustment shall be required and made in accordance with the provisions of this Section 6.4 (other than this subsection (f)) not later than such warrants or such other time as may be required in order to preserve the tax-free nature of a distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time holders of determinationDebentures or Common Stock. All calculations under this Section 6.4 shall be made to the nearest cent or to the nearest 1/100th of a share, as the case may be. Anything in this Section 6.4 to the contrary notwithstanding, the Company shall be entitled to make such reductions in the Conversion Price, in addition to those required by this Section 6.4, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock or securities, or distribution of securities convertible into or exchangeable for stock hereafter made by the Company to its stockholders shall not be taxable.
Appears in 1 contract
Sources: Debenture Purchase Agreement (Cover All Technologies Inc)
Adjustment of Conversion Price. The Conversion Price ------------------------------ shall be as specified in the form of Note hereinabove set forth, subject to adjustment as provided below . The Conversion Price shall be subject to adjustment adjusted from time to time by the Company as follows:
(a) In case the Company shall (1i) pay a dividend or make a distribution on its Common Stock in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3ii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or shares, (4iii) combine its outstanding shares of Common Stock into a smaller number of shares or (iv) issue by reclassification of its Common StockStock any shares of capital stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of any Security Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he or other capital stock of the Company that it would have owned or been entitled to receive immediately following such action had such Securities Note been converted immediately prior theretoto the occurrence of such action. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date date, in the case of a dividend or distribution and shall become effective distribution, or immediately after the effective date date, in the case of a subdivision subdivision, combination or combinationreclassification. If, as a result of an adjustment made pursuant to this subsection (a), the holder of any Note thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of capital stock or shares of Common Stock and other capital stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed by the Company with the Trustee and with any conversion agent as soon as practicable) shall determine the allocation of the adjusted Conversion Price between or among shares of such classes of capital stock or shares of Common Stock and other capital stock.
(b) In case the Company shall issue rights rights, warrants or warrants options to substantially all holders of its outstanding shares of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price per share (as determined pursuant to subsection (fg) belowof this Section 4.04) of the Common Stock on such record dateStock, the Conversion Price in effect immediately prior thereto shall be adjusted so that the same it shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of issuance of such record date rights, warrants or options by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on the date of issuance of such record daterights, warrants or options (immediately prior to such issuance) plus the number of shares of Common Stock which that the aggregate offering price of the total number of shares so offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on the date of issuance of such record date rights, warrants or options (immediately prior to such issuance) plus the number of additional shares of Common Stock offered (for subscription or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall be made successively whenever any rights, warrants or options are issued, and shall become effective immediately after the record date for the determination of stockholders entitled to receive such record daterights, warrants or options. In determining whether any rights, warrants or options 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 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 shall be described in a certificate filed by the Company with the Trustee and with any conversion agent as soon as practicable); provided, however, that rights, warrants or options issued by the -------- ------- Company to all holders of its Common Stock entitling the holders thereof to subscribe for or purchase shares of Common Stock, which rights, warrants or options (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, in each case in clauses (i) through (iii) until the occurrence of a specified event or events, shall, for purposes of this Section 4.04, not be deemed issued until the occurrence of the earliest such specified event.
(c) In case the Company shall distribute to all holders of its outstanding Common Stock any shares of any class of Capital Stock of the Company a capital stock (other than Common Stock), evidences evidence of indebtedness its indebtness or other assets (other than including securities and cash, but excluding any regular periodic cash dividend paid from surplus of the Company and dividends out or distributions payable in stock for which adjustment is made pursuant to subsection (a) of current this Section 4.04) or retained earnings)rights, warrants or shall distribute to substantially all holders of Common Stock rights or warrants options to subscribe for or purchase securities of the Company (other than excluding those Securities referred to in subsection (b) aboveof this Section 4.04), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the record date of such distribution by a fraction of which the numerator shall be the Current Market Price per share (as determined as provided in pursuant to subsection (fg) belowof this Section 4.04) of the Common Stock on the record date mentioned below less the then fair market value on such record date (as determined determine by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and shall be described in a Board Resolutioncertificate filed by the Company with the Trustee and with any conversion agent as soon as practicable) of the portion of the capital stock or the evidence of indebtdness or the assets so distributed to the holder of one share of Common Stock or of such subscription rights rights. warrants or warrants options applicable to one share of Common Stock, and of which the denominator denomonator shall be such Current Market Price per share of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock Stockholders entitled to receive such distribution. Notwithstanding the foregoing; provided, in case -------- however, that rights, warrants or options issued by the Company shall issue rights or warrants to ------- all holders of its Common Stock entitling the holders thereof to subscribe for additional or purchase shares of securities of the Company's capital stock Company (other than excluding those referred to in subsection (b) aboveof this Section 4.04), which rights, warrants or options (i) ("Rights") are deemed to substantially all holders be transferred with such shares of Common Stock, the Company may(ii) are not exercisable and (iii) are also issued in respect of future issuances of Common Stock, in lieu of making any adjustment pursuant to this Section 1407, 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, case in addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: clauses (i) if through (iii) until the occurrence of a specified events or events, shall, for purposes of this Section 4.04, not be deemed issued until the occurrence of the earliest such specified event.
(d) In case the Company shall issue to an Affiliate shares of its Common Stock at a net price per share less than the Current Market Price per share (as determined pursuant to subsection (g) of this Section 4.04) on the date the Company fixes the offering price of such additional shares, the Conversion Price shall be reduced immediately thereafter so that the same shall equal the price determined by multiplying such conversion occurs on or price in effect immediately prior to thereto by a fraction of which 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 numerator shall be number of shares of Common Stock equal outstanding immediately prior to the number of Conversion Shares is entitled at the time issuance of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of additional shares plus the number of shares of Common Stock into which that the principal amount aggregate offering price of the Security total number of shares of Common Stock so converted was convertible offered would purchase at the Current Market Price and the denominator shall be the number of shares of Common Stock outstanding immediately prior after the issuance of such additional shares. Such adjustment shall be made successively whenever such an issuance is made. This subsection (d) shall not apply to Common Stock issued to any Affiliate under a bona ---- fide employee or director benefit plan adopted by the Distribution Date would have been entitled on Board of ---- Directors and approved by the Distribution Date in accordance with the terms and provisions holders of and applicable to the RightsCommon Stock when required by law.
(de) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its the Company's Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant referred to paragraph in subsection (c) of this SectionSection 4.04 [or in connection with a transaction to which Section 4.09 applies]) in an aggregate amount that, together with the sum of (xA) the aggregate amount of any other distributions to all holders of its the Company's Common Stock made exclusively in cash plus (yexcluding any cash that was distributed as part of a distribution referred to in subsection (c) all Excess Payments, or in each case made connection with a transaction to which Section 4.09 applies) within the 12 months preceding the date fixed for determining the stockholders determination of shareholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price conversion price adjustment pursuant to paragraphs (c) or this subsection (e) has been made and (B) 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 shall be described in a certificate filed by the Company with the Trustee and with any conversion agent as soon as practicable) of other consideration payable in respect of any previous tender offer by the Company or a Subsidiary for the Company's Common Stock consummated within the 12 months preceding such distribution and in respect of which no adjustment pursuant to subsection (f) of this Section or this paragraph (d) 4.04 has been made, exceeds 1510% of the product of the Current Market Price per share (determined as provided in paragraph pursuant to subsection (fg) of this SectionSection 4.04) of the Common Stock on the Distribution Record Date multiplied by such date of determination times the number of shares of Common Stock outstanding on such date, the Distribution Record Date 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 per share (excluding shares held in determined pursuant to subsection (g) of this Section 4.04) of Common Stock on such date of determination less the treasury amount of cash to be distributed at such time applicable to one share of Common Stock and the denominator of which shall be such Current Market Price, such reduction to become effective immediately prior to the opening of business on the day after such date of determination.
(f) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Company's Common Stock shall be consummated and such tender offer 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 shall be described in a certificate filed by the Company with the Trustee and with any conversion agent as soon as practicable) on the last time (the "Expiration Time") tenders may be made pursuant to such tender offer (as it may have been amended) that, together with 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 shall be described in a certificate filed by the Company with the Trustee and with any conversion agent as soon as practicable), of other consideration paid or payable in respect of any previous tender offer by the Company or a Subsidiary for all or any portion of the Company's Common Stock consummated within the 12 months preceding the consummation of such tender offer and in respect of which no conversion price adjustment pursuant to this paragraph (f) has been made, such cash plus the fair market value of other consideration to be calculated in each case as of the expiration of each such previous tender offer, exceeds 10% of the product of the Current Market Price per share (determined pursuant to subsection (g) of this Section 4.04) of the Common Stock at 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 so that the same shall equal the price determined by multiplying such the Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) 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 pursuant to subsection (fg) of this SectionSection 4.04) of the Common Stock on at the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) at the Expiration Time minus (ii) the fair market value (determined as aforesaid) of the aggregate consideration paid or payable to stockholders based on the Distribution Record Datenumber of validly tendered shares to be purchased and not withdrawn prior to the Expiration Time (the number of shares so purchased being hereinafter referred to as the "Purchased Shares") and the denominator of which shall be the product of (i) such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record DateExpiration 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 Distribution Record DateExpiration Time.
(eg) In case a tender offer or other negotiated transaction made by For the Company or purpose of any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of computation under subsections (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Companyb), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"c), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph and (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase DateSection 4.04, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days business days ending on the last full Trading Day trading day on the exchange or market referred to in determining such Daily Market Prices daily market prices prior to the time Time of determination Determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or warrants, such warrants distribution, such issuance of Common Stock to an Affiliate or such other distribution or such negotiated transaction tender offer, as the case may be, through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time Time of determinationDetermination.
(h) In any case in which this Section 4.04 shall require that an adjustment be made immediately following a record date or an effective date, the Company may elect to defer (but only until five business days following the filing by the Company with the Trustee and any conversion agent of the certificate of independent public accountants required by subsection (j) of this Section 4.04) issuing to the holder of any Note converted after such record date or effective date the shares of Common Stock issuable upon such conversion over and above the shares of Common Stock issuable upon such conversion on the basis of the Conversion Price prior to adjustment, and paying to such holder any amount of cash in lieu of a fractional share.
(i) No adjustment in the Conversion Price shall be required to be made unless such adjustment would require an increase or decrease of at least 1% of such price; provided, however, that any -------- ------- adjustments that by reason of this subsection (i) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 4.04 shall be made to the nearest cent or to the nearest 1/100th of a share, as the case may be. Anything in this Section 4.04 to the contrary notwithstanding, the Company shall be entitled to make such reduction in the Conversion Price, in addition to those adjustments required by this Section 4.04, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock or securities or distribution of securities convertible into or exchangeable for stock hereafter made by the Company to its stockholders shall not be taxable to the recipients.
(j) Whenever the Conversion Price is adjusted as herein provided, (i) the Company shall promptly file with the Trustee and any conversion agent other than the Trustee a certificate of a firm of independent public accountants (who may be the regular accountants employed by the Company) setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment and the manner of comp
Appears in 1 contract
Sources: Indenture (Emc Corp)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment adjusted from time to time as follows:
(a) a. In case the Company Guarantor shall hereafter (1i) pay a dividend or make a distribution on its Common Stock in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3ii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or shares, (4iii) combine its outstanding shares of Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of Common StockCapital Stock of the Guarantor, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other Capital Stock of the Guarantor which he would have owned immediately following such action had such Securities Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification. If, as a result of an adjustment made pursuant to this subsection (a), the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of Capital Stock or shares of Common Stock and other Capital Stock of the Guarantor, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed with the Trustee and with the Registrar) shall determine in an equitable manner the allocation of the adjusted Conversion Price between or among shares of such classes of Capital Stock or shares of Common Stock and other Capital Stock.
(b) b. In case the Company Guarantor shall hereafter issue rights or warrants to substantially all holders of its outstanding shares of Common Stock generally entitling them (for a period commencing no earlier than expiring within 45 days after the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record datementioned below) 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 (as determined pursuant to subsection (f) below) per share of the Common Stock on such the record datedate mentioned below, the Conversion Price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of issuance of such record date rights or warrants by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on the date of issuance of such record date, rights or warrants plus the number of shares of Common Stock which the aggregate offering price of the total number of shares so offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on the date of issuance of such record date rights or warrants plus the number of additional shares of Common Stock offered (for subscription or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive such record daterights or warrants.
(c) c. In case the Company Guarantor shall hereafter distribute to all holders of its outstanding Common Stock shares generally evidences of its indebtedness or assets (excluding any class of Capital Stock cash dividend paid from retained earnings of the Company other than Common Stock, evidences Guarantor and dividends or distributions payable in stock for which adjustment is made pursuant to subsection (a) of indebtedness this Section 10.05) or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for to securities of the Guarantor (other than excluding those Securities referred to in subsection (b) aboveof this Section 10.05), then in each such case the Conversion Price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) per share of the Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value filed with the Trustee and described in a Board Resolutionwith the Registrar) of the portion of the evidences of indebtedness or assets so distributed to the holder of one share of Common Stock or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price per share of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock shareholders entitled to receive such distribution. Notwithstanding .
d. In any case in which this Section 10.05 shall require that an adjustment be made immediately following a record date, the foregoing, in case Guarantor may elect to defer (but only until five Business Days following the filing by the Company shall issue rights or warrants to subscribe for additional shares with the Trustee and the Registrar of the Company's capital stock (other than those referred to certificate of independent public accountants described in subsection (bf) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, make proper provision so that each holder 10.05) issuing to the Holder of a any Security who converts converted after 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 over and above the shares of Common Stock issuable upon such conversion on the basis of the Conversion Price prior to adjustment.
e. No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% of such price; provided, however, that any adjustments which by reason of this subsection (e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment, and provided further that adjustment shall be required and made in accordance with the "Conversion Shares"provisions of this Article 10 (other than this subsection (e)), not later than such time as may be required in order to preserve the tax-free nature of 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 (Securities or Common Stock. All calculations under this Section 10.05 shall be made to the "Distribution Date"), nearest cent or to the same number of Rights to which a holder nearest 1/100th 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offershare, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of be. Anything in this Section 10.05 to the contrary notwithstanding, the Guarantor shall be entitled to make such reductions in the Conversion Price, in addition to those required by this Section 10.05, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock or this paragraph (e) has been madesecurities, exceeds 15% or distribution of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied securities convertible into or exchangeable for stock hereafter made by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price Guarantor to its shareholders shall not be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Datetaxable.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
Appears in 1 contract
Sources: Indenture (Toll Brothers Inc)
Adjustment of Conversion Price. The conversion price as stated in paragraph 8 of the Securities (the "Conversion Price Price") shall be subject to adjustment adjusted from time to time by the Company as follows:
(a) In case the Company shall (1i) pay a dividend in shares of Common Stock to all holders of Common Stock, (2ii) make a distribution in shares of Common Stock to all holders of Common Stock, (3iii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock shares, or (4iv) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stockshares, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which he or she would have owned immediately following such action had such Securities Security been converted immediately prior theretoto the happening of such event. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend in shares or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants described below and expiring not more than 45 60 days after such record date) 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 current market price per share of Common Stock (as determined pursuant to in accordance with subsection (f) belowof this Section 4.6) at the record date for the determination of the Common Stock on shareholders entitled to receive such record daterights or warrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered total number of shares of Common Stock so offered (or the aggregate conversion price Conversion Price of the convertible securities so offered) would purchase at such Current Market Pricecurrent market price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued).
(c) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of any class of Capital Stock capital stock of the Company (other than Common Stock), evidences of indebtedness or other non-cash assets (including securities of any company other than cash dividends out of current or retained earningsthe Company), or shall distribute to all or substantially all holders of its Common Stock rights or warrants to subscribe for or purchase any of its securities (other than excluding those Securities referred to in subsection (b) aboveof this Section 4.6), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided defined in subsection (f) belowof this Section 4.6) of the Common Stock on the record date mentioned below less the then fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a Board Resolutionvalue) of the portion of the capital stock or assets or evidences of indebtedness so distributed or of such subscription rights or warrants applicable to one share of Common StockStock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator shall be such Current Market Price the current market price per share (as defined in subsection (f) of this Section 4.6) of the Common StockStock on such record date. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock shareholders entitled to receive such distribution. Notwithstanding the foregoing, in case the event that the Company shall issue distribute rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) aboveof this Section 4.6) ("Rights") pro rata to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 14074.6, 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; 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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute (a "Triggering Distribution") to all or substantially all holders of its Common Stock cash (including any distributions of cash out of current other than in connection with the liquidation or retained earnings dissolution of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this SectionCompany) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other cash distributions to all or substantially all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining of payment of the stockholders entitled to such distribution (the "Triggering Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) 4.6 has been made, exceeds 1510% of the product of the Current Market Price current market price per share of Common Stock (as determined as provided in paragraph accordance with subsection (f) of this SectionSection 4.6) of the Common Stock on the Business Day (the "Determination Date") immediately preceding the day on which such Triggering Distribution Record Date is declared by the Company multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date such date (excluding shares held in the treasury Treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) Determination Date by a fraction of which the numerator shall be the Current Market Price current market price per share of the Common Stock (as determined as provided in paragraph accordance with subsection (f) of this SectionSection 4.6) of the Common Stock on the Distribution Record Determination Date less the amount of such cash and other consideration (including any Excess Payments) so distributed within such 12 months (including, without limitation, the Triggering Distribution) applicable to one share of Common Stock (equal to determined on the aggregate amount basis of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Determination Date) and the denominator shall be such Current Market Price current market price per share of the Common Stock (as determined as provided in paragraph accordance with subsection (f) of this SectionSection 4.6) of the Common Stock on the Distribution Record Determination Date, such reduction to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution Record Dateis paid.
(e) In case the Company shall make a Triggering Distribution of cash or other consideration to all or substantially all holders of its Common Stock in respect of a tender or exchange offer or other negotiated transaction made by the Company or any Subsidiary of the Company subsidiary for all or any portion of the Common Stock shall be consummated, if ("Tender Offer") in an Excess Payment is made in respect of such tender offer or other negotiated transaction and the aggregate amount of such Excess Paymentthat, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all any other cash distributions to all or substantially all holders of the its Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration the Triggering Distribution and in respect of such current tender offer, as the case may be (the "Purchase Date"), and as to which no Conversion Price adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) 4.6 has been made, exceeds 1510% of the product of the Current Market Price current market price per share of Common Stock (as determined as provided in paragraph accordance with subsection (f) of this SectionSection 4.6) of the Common Stock on the Purchase Determination Date multiplied by the number of shares of Common Stock outstanding on such date (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary Treasury of the Company) on the Purchase Date), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) Determination Date by a fraction of which the numerator shall be the Current Market Price current market price per share of the Common Stock (as determined as provided in paragraph accordance with subsection (f) of this SectionSection 4.6) of the Common Stock on the Purchase Determination Date less the amount of cash or other consideration so distributed within such Excess Payments and such cash distributions12 months (including, if anywithout limitation, the Triggering Distribution) applicable to one share of Common Stock (equal to determined on the aggregate amount basis of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Determination Date) and the denominator shall be such Current Market Price current market price per share of the Common Stock (as determined as provided in paragraph accordance with subsection (f) of this SectionSection 4.6) of the Common Stock on the Purchase Determination Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Datedate on which the Triggering Distribution is paid.
(f) The "Current Market Price" For the purpose of any computation under subsections (b), (c), (d) and (e) of this Section 4.6, the current market price per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices daily closing prices for the shorter of 30 consecutive Trading Days commencing 45 Trading Days before (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.the
Appears in 1 contract
Sources: Indenture (Family Golf Centers Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or (4) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company (other than Common StockStock referred to in subsection (a) above), evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 14075.06, 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 (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. In the event the Company implements a shareholder rights plan, such rights plan must provide that upon conversion of the Securities the holders will receive, in addition to the Common Stock issuable upon such conversion, such rights (whether or not such rights have separated from the Common Stock at the time of such conversion).
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders shareholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
(g) In any case in which this Section 5.06 shall require that an adjustment be made immediately following a record date for an event, the Company may elect to defer, until such event, issuing to the holder of any Security converted after such record date the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion over and above the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence of the right to receive such shares.
Appears in 1 contract
Sources: Indenture (Intevac Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1i) pay issue Common Stock as a dividend in or distribution on its capital stock, including the Common Stock, (ii) combine its outstanding shares of Common Stock to holders into a smaller number of Common Stockshares, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3iii) subdivide its outstanding shares of Common Stock into a greater number of shares, or (iv) issue by reclassification of its Common Stock any shares of Common Stock or (4) combine its outstanding shares capital stock of Common Stock into a smaller number of shares of Common Stockthe Company, the Conversion Price conversion price in effect immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he or other capital stock of the Company that it would have owned or been entitled to receive immediately following such action had such Securities Security been converted immediately prior theretoto the occurrence of such action. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date date, in the case of a dividend or distribution and shall become effective distribution, or immediately after the effective date date, in the case of a subdivision subdivision, combination or combinationreclassification. If, as a result of an adjustment made pursuant to this subsection (a), the holder of any Securities thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of capital stock or shares of Common Stock and other capital stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed by the Company with the Trustee and with any conversion agent as soon as practicable) shall determine the allocation of the adjusted conversion price between or among shares of such classes of capital stock or shares of Common Stock and other capital stock.
(b) In case the Company shall issue rights rights, warrants or warrants options to substantially all holders of its outstanding shares of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price per share (as determined pursuant to subsection (f) belowof this Section 1304) of the Common Stock on such record dateStock, the Conversion Price conversion price in effect immediately prior thereto shall be adjusted so that the same it shall equal the price determined by multiplying the Conversion Price conversion price in effect immediately prior to the date of issuance of such record date rights, warrants or options by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on the date of issuance of such record daterights, warrants or options (immediately prior to such issuance) plus the number of shares of Common Stock which that the aggregate offering price of the total number of shares so offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on the date of issuance of such record date rights, warrants or options (immediately prior to such issuance) plus the number of additional shares of Common Stock offered (for subscription or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall be made successively whenever any rights, warrants or options are issued, and shall become effective immediately after the record date for the determination of shareholders entitled to receive such record daterights, warrants or options. In determining whether any rights, warrants or options 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 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 shall be described in a certificate filed by the Company with the Trustee and with any conversion agent as soon as practicable); provided, however, that rights, warrants or options issued by the Company to all holders of its Common Stock entitling the holders thereof to subscribe for or purchase shares of Common Stock, which rights, warrants or options (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 issuance of Common Stock, in each case in clauses (i) through (iii) until the occurrence of a specified event or events, shall, for purposes of this Section 1304, not be deemed issued until the occurrence of the earliest such specified event.
(c) In case the Company shall distribute to all holders of its outstanding Common Stock any shares of any class of Capital Stock of the Company capital stock (other than Common Stock), evidences of its indebtedness or other assets (other than including securities and cash, but excluding any regular periodic cash dividend paid from surplus of the Company and dividends out or distributions payable in stock for which adjustment is made pursuant to subsection (a) of current this Section 1304) or retained earnings)rights, warrants or shall distribute to substantially all holders of Common Stock rights or warrants options to subscribe for or purchase securities of the Company (other than excluding those Securities referred to in subsection (b) aboveof this Section 1304), then in each such case the Conversion Price conversion price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price conversion price in effect immediately prior to the record date of such distribution by a fraction of which the numerator shall be the Current Market Price per share (as determined as provided in pursuant to the subsection (f) belowof this Section 1304) of the Common Stock on the record date mentioned below less the then fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and shall be described in a Board Resolutioncertificate filed by the Company with the Trustee and with any conversion agent as soon as practicable) of the portion of the capital stock or the evidences of indebtedness or the assets so distributed to the holder of one share of Common Stock or of such subscription rights rights, warrants or warrants options applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price per share of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock shareholders entitled to receive such distribution. Notwithstanding the foregoing; provided, in case however, that rights, warrants or options issued by the Company shall issue rights or warrants to all holders of its Common Stock entitling the holders thereof to subscribe for additional or purchase shares of securities of the Company's capital stock Company (other than excluding those referred to in subsection (b) aboveof this Section 1304), which rights, warrants or options (i) ("Rights") are deemed to substantially all holders be transferred with such shares of Common Stock, the Company may(ii) are not exercisable and (iii) are also issued in respect of future issuance of Common Stock, in lieu of making any adjustment pursuant to this Section 1407, 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, case in addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: clauses (i) if such conversion occurs on or prior to through (iii) until 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 occurrence of a number specified event or events, shall, for purposes of shares of Common Stock equal to this Section 1304, not be deemed issued until the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder occurrence 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 Rightsearliest such specified event.
(d) In case the Company shall, by dividend or otherwise, at any time distribute make a distribution to all holders of its the Common Stock consisting exclusively of cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant referred to paragraph in subsection (c) of this SectionSection 1304 or in connection with a transaction to which Section 1311 applies) in an aggregate amount that, together with the sum of (xA) the aggregate amount of any other distributions to all holders of its the Common Stock made exclusively in cash plus (yexcluding any cash distributions referred to in subsection (c) all Excess Payments, of this Section 1304 or in each case connection with a transaction to which Section 1311 applies) made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price conversion price adjustment pursuant to paragraphs this subsection (cd) has been made and (B) 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 shall be described in a certificate filed by the Company with the Trustee and with any conversion agent as soon as practicable) of other consideration payable in respect of any previous tender offer by the Company or a Subsidiary for the Common Stock consummated within the 12 months preceding such distribution and in respect of which no adjustment pursuant to subsection (e) of this Section or this paragraph (d) 1304 has been made, exceeds 1510% of the product of the Current Market Price per share (determined as provided in paragraph pursuant to subsection (f) of this SectionSection 1304) of the Common Stock on the Distribution Record Date multiplied by date fixed for determining the shareholders entitled to such distribution times the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company)such date, the Conversion Price conversion price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price the conversion price in effect immediately prior to the effectiveness Close of the Conversion Price reduction contemplated by this paragraph (d) Business on such date of determination by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph pursuant to subsection (f) of this SectionSection 1304) of the Common Stock on the Distribution Record Date such date of determination less the amount of cash to be distributed at such cash and other consideration (including any Excess Payments) so distributed time applicable to one share of Common Stock and the denominator of which shall be such Current Market Price, such reduction to become effective immediately prior to the opening of business on the day after such date of determination.
(equal e) 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 in good faith by the Board of Directors, whose determination shall be conclusive and shall be described in a certificate filed by the Company with the Trustee and with any conversion agent as soon as practicable) on the last time (the "Expiration Time") tenders may be made pursuant to such tender offer (as it may have been amended) that, together with (X) 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 shall be described in a certificate filed by the Company with the Trustee and with any conversion agent as soon as practicable), of other consideration paid or payable in respect of any previous tender offer by the Company or a Subsidiary for all or any portion of the Common Stock consummated within the 12 months preceding the consummation of such tender offer and in respect of which no conversion price adjustment pursuant to this paragraph (e) has been made, such cash plus the fair market value of other consideration to be calculated in each case as of the expiration of each such previous tender offer, and (Y) the aggregate amount of all cash distributions to holders of Common Stock (excluding any cash that is distributed as part of a distribution referred to in subsection (c) of this Section 1304) within the 12 months preceding the consummation of such cash tender offer and other consideration in respect of which no conversion price adjustment pursuant to this paragraph (including any Excess Paymentse) divided by has been made, exceeds 10% of the product of the Current Market Price per share (determined pursuant to subsection (f) of this Section 1304) of the Common Stock at the Expiration Time times the number of shares of Common Stock outstanding on (including any tendered shares) at the Distribution Record Date) and Expiration Time, the denominator conversion price shall be such 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 pursuant to subsection (f) of this SectionSection 1304) of the Common Stock at the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) at the Expiration Time minus (ii) the fair market value (determined as aforesaid) of the aggregate consideration paid or payable to shareholders based on the Distribution Record Datenumber of validly tendered shares to be purchased and not withdrawn prior to the Expiration Time (the number of shares so purchased being hereinafter referred to as the "Purchased Shares") and the denominator of which 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 Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase DateExpiration Time.
(f) The "For the purpose of any computation under subsections (b), (c), (d) and (e) of this Section 1304, the Current Market Price" Price per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time Time of determination Determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or warrants, such warrants distribution, or such other distribution or such negotiated transaction tender offer, as the case may be, through such last full trading day on the exchange or market referred to in determining such Daily Market Prices Trading Day prior to the Time of Determination.
(g) In any case in which this Section 1304 shall require that an adjustment be made immediately following a record date or an effective date, the Company may elect to defer (but only until five Business Days following the filing by the Company with the Trustee and any conversion agent of the certificate required by Section 1305) issuing to the holder of any Security converted after such record date or effective date the shares of Common Stock issuable upon such conversion over and above the shares of Common Stock issuable upon such conversion on the basis of the conversion price prior to adjustment, and paying to such holder any amount of cash in lieu of a fractional share.
(h) No adjustment in the conversion price shall be required to be made unless such adjustment would require an increase or decrease of at least 1% of such price; provided, however, that any adjustments that by reason of this subsection (h) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 1304 shall be made to the nearest cent or to the nearest 1/10,000th of a share, as the case may be. Anything in this Section 1304 to the contrary notwithstanding, the Company shall be entitled to make such reduction in the conversion price, in addition to those adjustments required by this Section 1304, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock or securities or distribution of securities convertible into or exchangeable for stock hereafter made by the Company to its shareholders shall not be taxable to the recipients.
(i) In the event that at any time as a result of determinationan adjustment made pursuant to subsection (a) of this Section 1304, the holder of any Security thereafter surrendered for conversion shall become entitled to receive any shares of the Company other than shares of Common Stock, thereafter the conversion price of such other shares so receivable upon conversion of any Security shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to Common Stock contained in this Article Thirteen.
Appears in 1 contract
Sources: Indenture (Kent Electronics Corp)
Adjustment of Conversion Price. The Conversion Price with respect to Convertible Securities of a series shall be subject to adjustment adjusted from time to time as followsfollows with respect to events that take place after the initial issuance of any Securities of such series:
(a1) In case if the Company shall (1i) pay a dividend in shares of Common Stock to holders of Common Stock, (2) or make a distribution in shares of Common Stock to holders of on the Common Stock, (3ii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or shares, (4iii) combine its outstanding shares of Common Stock into a smaller number of shares or (iv) issue by reclassification of its Common StockStock any shares of capital stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted deemed to be proportionately adjusted, so that the holder any Holder of any Convertible Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other capital stock of the Company which he would have owned or been entitled to receive immediately following such action had such Securities Convertible Security been converted immediately prior thereto. Any If in any reclassification the holders of Common Stock are entitled to make an election between different forms of consideration, the Holders shall be deemed to have elected to receive the consideration payable to a plurality of the holders of Common Stock who have not duly filed elections as to the consideration to be received. An adjustment made pursuant to this subsection (a1) shall become effective immediately immediately, except as provided in subsection (6) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification.
(b2) In case the Company shall issue rights or warrants generally to substantially all holders of Common Stock rights, options or warrants entitling them such holders (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than exceeding 45 days after from the date of such record dateissuance) 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 current market price per share (as determined pursuant to subsection (f5) below) of the Common Stock on such the record datedate mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of issuance of such record date rights, options or warrants by a fraction fraction, of which which
(i) the numerator shall be the sum of (A) the number of shares of Common Stock outstanding on the date fixed for the determination of stockholders entitled to receive such record daterights, plus options or warrants, and (B) the number of shares of Common Stock which the aggregate offering price of the offered total number of shares of Common Stock (so offered for subscription or the aggregate conversion price of the convertible securities so offered) purchase would purchase at such Current Market Pricecurrent market price (determined by multiplying such total number of shares by the exercise price of such rights, options or warrants and dividing the product so obtained by such current market price), and of which which
(ii) the denominator shall be the sum of (A) the number of shares of Common Stock outstanding on the date fixed for the determination of stockholders entitled to receive such record date plus rights, options or warrants, and (B) the number of additional shares of Common Stock offered (or into which the convertible securities are so offered are convertible)for subscription or purchase. Such adjustments adjustment shall become effective immediately immediately, except as provided in subsection (6) below, after the record date for the determination of holders entitled to receive such record daterights, options or warrants.
(c3) In case the Company shall distribute shall, by dividend or otherwise, distribute, to substantially all holders of Common Stock shares Stock, evidences of any class of Capital Stock of indebtedness, equity securities (including equity interests in the Company Company's Subsidiaries) other than Common Stock, evidences of indebtedness or other assets (other than cash dividends paid out of earned surplus of the Company or current or retained earningsnet earnings as shown on the books of the Company and other than Extraordinary Cash Dividends, which are governed by the provisions of subsection (4) below), or shall distribute to substantially all holders of Common Stock rights rights, options or warrants entitling such Holders to subscribe for securities (other than those Securities referred to in subsection (b2) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which which
(i) the numerator shall be the Current Market Price current market price per share (determined as provided in subsection (f5) below) of the Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of Directors, whose determination shall shall, if made in good faith, be conclusive evidence of such fair market value and described in a Board Resolutionprovided to the Trustee) of the portion of the assets assets, evidence of indebtedness, equity securities or other securities so distributed or of such subscription rights rights, options or warrants applicable to one share of Common Stock, and of which which
(ii) the denominator shall be such Current Market Price current market price per share of the Common Stock. Such adjustment shall become effective immediately immediately, except as provided in subsection (6) below, after the record date for the determination of the holders of Common Stock stockholders entitled to receive such distribution. Notwithstanding the foregoing, with respect to the rights ("Rights") distributed under the Rights Agreement, dated as of June 4, 1989, between the Company and BankBoston, N.A. as amended and as it may be further amended after the date hereof and/or in case the event that and each time that the Company shall issue distribute any other rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection paragraph (b2) aboveof this Section) ("Additional Rights") pro rata to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, shall make proper provision so that each holder Holder of a Convertible Security who converts such Convertible Security (or any portion thereof) (A) after the date hereof in the case of Rights and (B) after the record date for any such distribution in the case of Additional Rights, and prior to the expiration or redemption of the Rights or Additional Rights, as the case may be, 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 or Additional 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 or Additional Rights of separate certificates evidencing such Rights or Additional Rights (the "Distribution Date"), the same number of Rights or Additional 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 or Additional Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights or Additional 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 term and provisions of and applicable to the Rights or Additional Rights. If, with respect to any distribution to which this paragraph (3) would otherwise apply, the fair market value of the portion of the assets so distributed applicable to one share of Common Stock exceeds the current market price per share of Common Stock or the current market price per share of Common Stock exceeds such fair market value by less than $1.00, then the adjustment provided by this subsection (3) shall not be made and in lieu thereof the provision of paragraph (8) shall apply to such distribution.
(d4) In case If the Company shall, by dividend or otherwise, at any time distribute generally to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of upon a distribution requiring a Conversion Price adjustment pursuant merger or consolidation to paragraph (c) of this Sectionwhich Section 4.05 applies) in an aggregate amount thatsuch that such dividend or distribution shall constitute an Extraordinary Cash Dividend, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Paymentsthen, and in each case made within such case, immediately after the 12 months preceding the close of business on such date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company)determination, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such the Conversion Price in effect immediately prior to the effectiveness close of business on the date fixed for determination of the Conversion Price reduction contemplated by this paragraph (d) stockholders entitled to receive such distribution by a fraction fraction, of which which
(i) the numerator shall be equal to (A) the Current Market Price current market price per share (determined as provided in paragraph (f5) of this Section) of the Common Stock on the Distribution Record Date date fixed for such determination less the (B) an amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate excess of such Extraordinary Cash Dividend over four times the per share amount of such cash the Company's most recently declared regular quarterly dividend and other consideration of which
(including any Excess Paymentsii) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be equal to such Current Market Price market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Dateshare.
(e5) In case a tender offer or other negotiated transaction made by For the Company or purpose of any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of computation under subsections (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company2), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c3) or paragraph (d4) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Dateabove, the Conversion Price shall be reduced so that the same shall equal the current market price determined by multiplying such 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 (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Sale Prices for the shorter 20 consecutive Trading Days commencing 30 Trading Days before the date in question.
(6) In any case in which this Section 4.04 shall require that an adjustment of the Conversion Price be made effective immediately following a record date, the Company may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), in which case the Company shall, with respect to any Convertible Security converted after such record date and before such adjustment shall have become effective, (i) 30 consecutive defer paying any cash payment pursuant to Section 4.03 or issuing to the Holder of such Convertible Security the number of shares of Common Stock and other capital stock of the Company issuable upon such conversion in excess of the number of shares of Common Stock and other capital stock of the Company issuable thereupon only on the basis of the Conversion Price prior to adjustment and (ii) not later than five Business Days ending after such adjustment shall have become effective, pay to such Holder the appropriate cash payment pursuant to Section 4.03 and issue to such Holder the additional shares of Common Stock and other capital stock of the Company issuable on such conversion.
(7) No adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least one percent of the Conversion Price; provided, however, that any adjustments which by reason of this subsection (7) are not required to be made shall be carried forward and taken into account in any subsequent adjustment; and, provided, further, that each adjustment shall be required and made in accordance with the provisions of this Article Four (other than this subsection (7)) not later than such time as may be required in order to preserve the tax-free nature of a distribution to the holders of Convertible Securities or Common Stock. All calculations under this Article Four shall be made to the nearest cent or to the nearest one- hundredth of a share, as the case may be.
(8) If the Company makes a distribution to holders of its Common Stock of any of its assets, or debt securities or any rights, warrants or options to purchase securities of the Company that, but for the provisions of the last full Trading Day on sentence of subsection (3), would otherwise result in an adjustment in the exchange Conversion Rate, then, from and after the record date for determining the holders of Common Stock entitled to receive the distribution, a Holder of a Convertible Security that converts such Convertible Security in accordance with the provisions of this Indenture shall upon such conversion be entitled to receive, in addition to the shares of Common Stock into which the Convertible Security is convertible, the kind and amount of securities, cash or market referred to in determining other assets comprising the distribution that such Daily Market Prices Holder would have received if such Holder had converted the Convertible Security immediately prior to the time record date for determining the holders of determination or Common Stock entitled to receive the distribution.
(9) Whenever the Conversion Price shall be adjusted as herein provided, the Company shall promptly (i) file with the Trustee and each Conversion Agent an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth in reasonable detail the facts requiring such adjustment and the manner of computing the same, and (ii) mail or cause to be mailed a notice stating that the period commencing Conversion Price has been adjusted and setting forth the adjusted Conversion Price to each Holder of Convertible Securities at his address as the same appears on the date next succeeding Security Register. Anything in this Section 4.04 to the first public announcement contrary notwithstanding, the Company shall be entitled to make such reductions in the Conversion Price, in addition to those required by this Section 4.04, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of the issuance shares, distribution of such rights or such warrants to purchase stock or such securities, or distribution of other distribution or such negotiated transaction through such last full trading day on assets (other than cash dividends) hereafter made by the exchange or market referred Company to in determining such Daily Market Prices prior to the time of determinationits stockholders shall not be taxable.
Appears in 1 contract
Sources: Senior Debt Indenture (Hasbro Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment adjusted from time to time as follows:
(a) a. In case the Company Guarantor shall hereafter (1i) pay a dividend or make a distribution on its Common Stock in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3ii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or shares, (4iii) combine its outstanding shares of Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of Common StockCapital Stock of the Guarantor, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other Capital Stock of the Guarantor which he would have owned immediately following such action had such Securities Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification. If, as a result of an adjustment made pursuant to this subsection (a), the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of Capital Stock or shares of Common Stock and other Capital Stock of the Guarantor, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed with the Trustee and with the Registrar) shall determine in an equitable manner the allocation of the adjusted Conversion Price between or among shares of such classes of Capital Stock or shares of Common Stock and other Capital Stock.
(b) b. In case the Company Guarantor shall hereafter issue rights or warrants to substantially all holders of its outstanding shares of Common Stock generally entitling them (for a period commencing no earlier than expiring within 45 days after the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record datementioned below) 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 (as determined pursuant to subsection (f) below) per share of the Common Stock on such the record datedate mentioned below, the Conversion Price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of issuance of such record date rights or warrants by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on the date of issuance of such record date, rights or warrants plus the number of shares of Common Stock which the aggregate offering price of the total number of shares so offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on the date of issuance of such record date rights or warrants plus the number of additional shares of Common Stock offered (for subscription or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive such record daterights or warrants.
(c) c. In case the Company Guarantor shall hereafter distribute to all holders of its outstanding Common Stock shares generally evidences of its indebtedness or assets (excluding any class of Capital Stock cash dividend paid from retained earnings of the Company other than Common Stock, evidences Guarantor and dividends or distributions payable in stock for which adjustment is made pursuant to subsection (a) of indebtedness this Section 10.05) or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for to securities of the Guarantor (other than excluding those Securities referred to in subsection (b) aboveof this Section 10.05), then in each such case the Conversion Price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) per share of the Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and shall be described in a Board Resolutionstatement filed with the Trustee and with the Registrar) of the portion of the evidences of indebtedness or assets so distributed to the holder of one share of Common Stock or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price per share of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock shareholders entitled to receive such distribution. Notwithstanding .
d. In any case in which this Section 10.05 shall require that an adjustment be made immediately following a record date, the foregoing, in case Guarantor may elect to defer (but only until five Business Days following the filing by the Company shall issue rights or warrants to subscribe for additional shares with the Trustee and the Registrar of the Company's capital stock (other than those referred to certificate of independent public accountants described in subsection (bf) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, make proper provision so that each holder 10.05) issuing to the Holder of a any Security who converts converted after 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 over and above the shares of Common Stock issuable upon such conversion on the basis of the Conversion Price prior to adjustment.
e. No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% of such price; provided, however, that any adjustments which by reason of this subsection (e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment, and provided further that adjustment shall be required and made in accordance with the "Conversion Shares"provisions of this Article 10 (other than this subsection (e)), not later than such time as may be required in order to preserve the tax-free nature of 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 (Securities or Common Stock. All calculations under this Section 10.05 shall be made to the "Distribution Date"), nearest cent or to the same number of Rights to which a holder nearest 1/100th 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offershare, as the case may be. Anything in this Section 10.05 to the contrary notwithstanding, the Guarantor shall be entitled to make such reductions in the Conversion Price, in addition to those required by this Section 10.05, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock or securities, or distribution of securities convertible into or exchangeable for stock hereafter made by the Guarantor to its shareholders shall not be taxable.
f. Whenever the Conversion Price is adjusted as herein provided, (i) the "Purchase Date"Company and the Guarantor shall promptly file with the Trustee and the Registrar a certificate of a firm of independent public accountants setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment and the manner of computing the same, which certificate shall be conclusive evidence of the correctness of such adjustment and (ii) a notice stating that the Conversion Price has been adjusted and setting forth the adjusted Conversion Price shall forthwith be given by the Company and the Guarantor to the Holders in the manner provided in Section 13.02. Subject to TIA Section 315(a), and as to which no adjustment pursuant to paragraph (c) or paragraph and (d), the Trustee and any conversion agent shall be under no duty or responsibility with respect to any such certificate or the certificate provided for in Section 10.10 except to exhibit the same from time to time to any Holder of a Security desiring an inspection of such certificate.
g. In the event that at any time as a result of an adjustment made pursuant to subsection (a) of this Section or this paragraph (e) has been made10.05, exceeds 15% the Holder of any Security thereafter surrendered for conversion shall become entitled to receive any shares of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of Guarantor other than shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase DateStock, thereafter the Conversion Price of such other shares so receivable upon conversion of any Security shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price subject to adjustment from time to time in effect immediately prior a manner and on terms as nearly equivalent as practicable to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the provisions with respect to Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided contained in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase DateArticle 10.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
Appears in 1 contract
Sources: Indenture (Toll Brothers Inc)
Adjustment of Conversion Price. The "Conversion Price Price" for a Series of Securities shall be as set forth in a Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Section 2.1 by or pursuant to which the form and terms of the Securities of such Series were established, and shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) or make a distribution in shares of Common Stock to holders of Common Stock, (32) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or Stock, (43) combine its outstanding shares of Common Stock into a smaller number of shares of Common StockStock or (4) issue by reclassification of its Common Stock any shares of capital stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other capital stock of the Company which he would have owned immediately following such action had such Securities Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (e) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification. If as a result of an adjustment made pursuant to this subsection (a), the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of capital stock (including shares of Common Stock and other capital stock) of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed with the Trustee) shall determine the allocation of the adjusted Conversion Price between or among shares of such classes of capital stock or shares of Common Stock and other capital stock.
(b) In case the Company shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than exceeding 45 days after from the date of such record dateissuance) to subscribe for or purchase shares of Common Stock (or securities Securities convertible into Common Stock) Stock at a price per share less than the Current Market Price current market price per share (as determined pursuant to subsection (fd) below) of the Common Stock on such the record datedate mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by multiplying multiplying:
(1) the Conversion Price in effect immediately prior to the date of issuance of such record date by rights or warrants by
(2) a fraction fraction, of which (i) the numerator shall be (A) the number of shares of Common Stock outstanding on the date of issuance of such record daterights or warrants, immediately prior to such issuance, plus (B) the number of shares of Common Stock which the aggregate offering price of the offered total number of shares of Common Stock (or the aggregate conversion price of the convertible securities securities) so offered) offered for subscription or purchase would purchase at such Current Market Pricecurrent market price (determined by multiplying such total number of shares by the exercise price of such rights or warrants and dividing the product so obtained by such current market price), and of which (ii) the denominator shall be (A) the number of shares of Common Stock outstanding on the date of issuance of such record date rights or warrants, immediately prior to such issuance, plus (B) the number of additional shares of Common Stock offered (or into which the convertible securities are convertible) which are so offered are convertible)for subscription or purchase. Such adjustments adjustment shall become effective immediately except as provided in subsection (e) below, after the record date for the determination of holders entitled to receive such record daterights or warrants.
(c) In case the Company shall distribute to substantially all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness indebtedness, equity securities (including equity interests in the Company's Subsidiaries) other than common stock, or other assets (other than cash dividends paid out of current or retained earningssurplus of the Company), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), ) then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in subsection (fd) below) of the Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of Directors, whose determination shall shall, if made in good faith, be conclusive evidence of such fair market value and described in a Board Resolutionvalue) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price current market price per share of the Common Stock. Such adjustment shall become effective immediately immediately, except as provided in subsection (e) below, after the record date for the determination of the holders of Common Stock stockholders entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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.
(d) In case For the Company shall, by dividend or otherwise, at purpose of any time distribute to all holders of its Common Stock cash computation under subsections (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph b) and (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company)above, the Conversion Price shall be reduced so that the same shall equal the current market price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Last Sale Prices for the shorter 30 consecutive Trading Days commencing 45 Trading Days before the date in question.
(e) In any case in which this Section 12.4 shall require that an adjustment be made immediately following a record date, the Company may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), in which case the Company shall, with respect to any Security converted after such record date and before such adjustment shall have become effective, (i) 30 consecutive defer paying any cash payment pursuant to Section 12.3 or issuing to the Holder of such Security the number of shares of Common Stock and other capital stock of the Company issuable upon such conversion in excess of the number of shares of Common Stock and other capital stock of the Company issuable thereupon only on the basis of the Conversion Price prior to adjustment and (ii), not later than five Business Days ending after such adjustment shall have become effective, pay to such Holder the appropriate cash payment pursuant to Section 12.3 and issue to such Holder the additional shares of Common Stock and other capital stock of the Company issuable on such conversion.
(f) No adjustment in the last full Trading Day on Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% of the exchange or market referred Conversion Price; provided that any adjustments which by reason of this subsection (f) are not required to be made shall be carried forward and taken into account in determining any subsequent adjustment and provided, further, that adjustment shall be required and made in accordance with the provisions of this Article XII (other than this subsection (f)) not later than such Daily Market Prices prior time as may be required in order to preserve the tax-free nature of a distribution to the time holders of determination Securities or Common Stock. All calculations under this Article XII shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(g) Anything in this Section 12.4 to the contrary notwithstanding, no adjustment need be made for rights to purchase Common Stock pursuant to a Company plan for reinvestment of dividends or interest or for rights to purchase Capital Stock pursuant to any future dividend or distribution which the Company determines to be comparable in purpose and in effect to the dividend and subsequent distribution of Rights contemplated by the Rights Agreement and no adjustment need be made for a change in the par value or no par value of the Common Stock.
(h) Whenever the Conversion Price is adjusted as herein provided, the Company shall promptly (i) file with the Trustee and each Conversion Agent an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment, and (ii) mail or cause to be mailed a notice of such adjustment to each Holder of Securities at his address as the period commencing same appears on either the date next succeeding the first public announcement registry books of the issuance Company or in the filings described in Section 2.4. Anything in this Section 12.4 to the contrary notwithstanding, the Company shall be entitled to make such reductions in the Conversion Price, in addition to those required by this Section 12.4, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of such shares, distribution of rights or such warrants to purchase stock or such securities, or distribution of other distribution or such negotiated transaction through such last full trading day on assets (other than cash dividends) hereafter made by the exchange or market referred Company to in determining such Daily Market Prices prior to the time of determinationits stockholders shall not be taxable.
Appears in 1 contract
Sources: Indenture (Kellwood Co)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or (4) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or other distribution and shall become effective immediately after on the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to substantially all holders of Common Stock entitling them exclusively in Common Stock (for other than a period commencing no earlier than distribution referred to in paragraph (c) of this Section), the record conversion price in effect at the opening of business on the day following the date fixed for the determination of holders of Common Stock shareholders entitled to receive such rights dividend or warrants and expiring not more than 45 days after such record date) 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 (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price other distribution shall be adjusted so that the same shall equal the price determined reduced by multiplying the Conversion Price in effect immediately prior to such record date 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 record datedetermination 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. In case the Company shall make a dividend or other distribution on the Common Stock in shares of its Capital Stock other than Common Stock, and such dividend or distribution would not otherwise require reduction of the conversion price pursuant to paragraph (d), then the conversion price and the number and kind of shares of Capital Stock of the Company issuable upon the conversion of a Security (as in effect immediately prior to such dividend or distribution) shall be proportionately adjusted so that the Holder of any Security thereafter converted may receive the aggregate number and kind of shares of Capital Stock of the Company that such Holder would have owned immediately following such dividend or distribution if such Security had been converted immediately prior thereto. For the purpose of this paragraph (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 shall not pay any dividend or make any distribution on shares of Common Stock held in the treaury of the Company.
(b) Subject to the last sentence of paragraph (g) of this Section, in case the Company shall make a dividend or other distribution on the Common Stock consisting exclusively of, or shall otherwise issue to all holders of the Common Stock, rights, options or warrants entitling the holders thereof to subscribe for or purchase shares of Common Stock or securities convertible into or exchangeable for shares of Common Stock at a price per share (determined on an as-converted or as-exercised basis if the rights, options or warrants pertain to securities convertible into or exchangeable for Common Stock) less than the Current Market Price (determined as provided in paragraph (h) of this Section) on the date fixed for the determination of shareholders entitled to receive such rights, options or 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 which the aggregate of the offering price (including the minimum consideration payable upon conversion or exchange of securities convertible into or exchangeable for Common Stock) of the offered total number of shares of Common Stock (so offered for subscription or the aggregate conversion price of the convertible securities so offered) purchase would purchase at such Current Market Price, 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 record date determination plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such record datedetermination. For the purposes of this paragraph (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 shall not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(c) 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 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 subdivision or combination becomes effective.
(i) Subject to the last sentence of this paragraph (d)(i) and the last sentence of paragraph (g) of this Section, in case the Company shall shall, by dividend or otherwise, distribute to all holders of the Common Stock evidences of its indebtedness, shares of any class of its Capital Stock of the Company other than Common Stock, evidences of indebtedness cash or other assets (other than including securities, but excluding any rights, options or warrants referred to in paragraph (b) of this Section, excluding any dividend or distribution paid exclusively in cash dividends out of consolidated current or retained earnings), or shall distribute to substantially all holders earnings as shown on the books of Common Stock rights or warrants to subscribe for securities the Company prepared in accordance with GAAP (other than those Securities any Extraordinary Cash Dividend (as hereinafter defined)) and excluding any dividend or distribution referred to in subsection paragraph (ba) aboveor (c) of this Section), then in each such case the Conversion Price conversion price shall be adjusted so that the same shall equal the price determined reduced by multiplying the Conversion Price conversion price in effect immediately prior to the close of business on the date fixed for the determination of shareholders entitled to such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection paragraph (f) belowh) of the Common Stock this Section) on the record such date mentioned below less the then 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 resolution of the Board Resolutionof Directors) on such date of the portion of the evidences of indebtedness, shares of Capital Stock, cash and other assets so to be distributed or of such subscription rights or warrants applicable to one share of Common Stock, Stock and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall Price, such reduction to become effective immediately after prior to the record date opening of business on the day following such date. If the Board of Directors determines the fair market value of any distribution for purposes of this paragraph (d)(i) by reference to the determination 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)(i), an "Extraordinary Cash Dividend" shall be that portion, if any, of the holders aggregate amount of all cash dividends paid in any fiscal year which exceed $25,000,000. For purposes of this paragraph (d)(i), any dividend or distribution that includes shares of Common Stock entitled to receive such distribution. Notwithstanding the foregoingStock, in case the Company shall issue rights rights, options or warrants to subscribe for additional 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 Company's capital stock (evidences of indebtedness, cash, assets or shares of Capital Stock other than those referred to in subsection (b) above) ("Rights") to substantially all holders such shares of Common Stock, the Company maysuch rights, in lieu of options or warrants or such convertible or exchangeable securities (making any adjustment pursuant to conversion price reduction required by this Section 1407, make proper provision so that each holder paragraph (d)(i)) immediately followed by (y) in the case 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 or such conversion (the "Conversion Shares")rights, options or warrants, a number dividend or distribution thereof (making any further conversion price reduction required by paragraph (a) and (b) 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")this Section, the same number of Rights to which a holder of a number of except any shares of Common Stock equal to the number of Conversion Shares is entitled included in such dividend or distribution shall not be deemed "outstanding at the time 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 conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Dateconvertible or exchangeable securities, the same number of Rights to which a holder dividend or distribution of the number of shares of Common Stock into which as would then be issuable upon the principal amount 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 Security so converted was convertible 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).
(ii) In case the Company shall issue shares of Common Stock for a consideration per share less than the Current Market Price (determined as provided in paragraph (h) of this Section), the conversion price shall be reduced by multiplying the conversion price in effect immediately prior to the Distribution Date would close of business on the date on which the Company fixes the offering price of such additional shares 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 a fraction equal to the aggregate consideration received by the Company from the issuance of such additional shares of Common Stock over the Current Market Price on the date on which the Company fixes the offering price of such additional shares (determined as provided in paragraph (h) of this Section), and the denominator of which shall be the number of shares of Common Stock outstanding immediately after giving effect to such issuance. The reduction in the conversion price provided for in the preceding sentence shall not apply to (i) securities issued in transactions described in paragraphs (a), (b), (c), (d)(i), (d)(iii) or (f) of this Section or pursuant to the conversion or exchange of any such securities (to the extent applicable); (ii) the conversion or exchange of securities (including options) convertible or exchangeable for Common Stock outstanding on the date of this Indenture, or issuable pursuant to binding agreements in effect on the date of this Indenture; (iii) Common Stock issued and issuable upon the exercise of options issued to the Company's directors, officers and employees under bona fide employee benefit plans adopted by the Board of Directors and approved by the holders of Common Stock when required by law or otherwise where such issuances have been entitled approved by the Board of Directors (but only to the extent that the aggregate number of shares excluded hereby and issued after the date of this Indenture shall not exceed 1% of the Common Stock outstanding at the time of issuance); (iv) Common Stock issued to shareholders of any person that merges into the Company in proportion to their stock holdings of such person immediately prior to such merger, upon such merger; (v) Common Stock issued in a bona fide underwritten public offering; (vi) Common Stock issued in a bona fide private placement through a placement agent that is a member firm of the National Association of Securities Dealers, Inc. (except to the extent that any discount from the Current Market Price (determined as provided in paragraph (h) of this Section) attributable to restrictions on transferability of the Common Stock, as determined in good faith by the Board of Directors and described in a resolution thereof which shall be filed with the Trustee, shall exceed 20%), or issuable pursuant to a binding agreement in effect on the Distribution Date in accordance with date of this Indenture; or (vii) Common Stock issued as a dividend on any securities outstanding on the terms and provisions date of and applicable this Indenture required to be made pursuant to the Rightscertificate of designation pertaining to such securities in effect at the time such securities were issued.
(diii) In case the Company shall issue any securities convertible into or exchangeable for Common Stock for a consideration per share (including the minimum consideration per share payable upon conversion or exchange of any securities convertible into or exchangeable for Common Stock) of Common Stock initially deliverable upon conversion or exchange of such securities less than the Current Market Price (determined as provided in paragraph (h) of this Section), the conversion price shall be reduced by multiplying the conversion price in effect immediately prior to the close of business on the date on which the Company fixes the offering price of such additional shares by a fraction of which the numerator shall be the number of shares of Common Stock outstanding immediately prior to the issuance of such securities plus a fraction equal to the aggregate consideration received for the issuance of such securities (including the minimum consideration per share payable upon conversion or exchange of any securities convertible into or exchangeable for Common Stock) over the Current Market Price on the date on which the Company fixes the offering price of such additional shares (determined as provided in paragraph (h) of this Section), and the denominator of which shall be the number of shares outstanding immediately prior to the issuance of such securities plus the maximum number of shares deliverable upon conversion of or in exchange for such securities at the initial conversion or exchange rate. The reduction in the conversion price provided for in the preceding sentence shall not apply to (i) securities issued in transactions described in paragraphs (a), (b) or (d)(i) of this Section; (ii) convertible securities issued to shareholders of any person that merges into the Company, or with a Subsidiary of the Company, in proportion to their stock holdings of such person immediately prior to such merger, upon such merger; (iii) convertible securities issued in a bona fide underwritten public offering; (iv) convertible securities issued in a bona fide private placement through a placement agent that is a member firm of the National Association of Securities Dealers, Inc. (except to the extent that any discount from the Current Market Price (determined as provided in paragraph (h) of this Section) attributable to restrictions on transferability of Common Stock issuable upon conversion, as determined in good faith by the Board of Directors and described in a resolution thereof which shall be filed with the Trustee, shall exceed 20% of the then Current Market Price, or issuable pursuant to a binding agreement in effect on the date of this Indenture; or (iv) stock options issued to the Company's directors, officers or employees.
(e) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its the Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant referred to in paragraph (cd)(i) of this SectionSection or in connection with a transaction to which Section 11.11 applies) in an aggregate amount that, together with the sum of (xi) the aggregate amount of any other distributions to all holders of its the Common Stock made exclusively in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders determination of shareholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price conversion price adjustment pursuant to paragraphs paragraph (cd)(i) 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 resolution of the Board of Directors) 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, and any purchase by the Company of shares of Common Stock in the open market, 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 or this paragraph (d) has been mademade previously, exceeds 1512.5% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.as
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or (4) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. In the event of a reverse stock split of the Common Stock, the Conversion Price shall be subject to further adjustment as provided in Section 5.6(f) below.
(b) In case the Company shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price current market price per share (as determined pursuant to subsection (fg) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Pricecurrent market price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price current market price per share of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the event that the Company shall issue distribute rights or warrants to subscribe for additional shares of the Company's capital stock Capital Stock (other than those the Common Stock referred to in subsection (b) above) ("Rights") pro rata to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 14075.6, 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by times the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share (based on the pro rata portion of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) ), divided by the number of shares of Common Stock outstanding on the Distribution Record Date) of Common Stock and the denominator shall be such Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (specifically including any distributions of cash out of current or retained earnings of the Companyearnings), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by times the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share (based on the pro rata portion of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions distributions, divided by the number of shares of Common Stock outstanding on the Purchase Date) of Common Stock and the denominator shall be such Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) If the Company effects a reverse stock split of the Common Stock prior to 90 days after the SEC has declared effective the Shelf Registration Statement, the Conversion Price related to the Securities shall be adjusted first as provided in Section 5.6(a) above, and then shall be further adjusted on the 15th day following the expiration of the Pricing Period (as defined below) by multiplying the existing Conversion Price by a fraction, the numerator of which shall be the volume weighted average price of the Common Stock for the period beginning on the 11th trading day following the effective date of the reverse stock split and ending on the 30th trading day following the effective date of the reverse stock split (such period being the "Pricing Period") and the denominator of which shall be the volume weighted average price of the Common Stock for the five trading day period ending on the earlier of (i) the date that the Company publicly discloses its intention to effectuate (or consider) such reverse stock split through a press release, proxy materials or other means or (ii) the date that the Company publicly discloses that it has received any notice or other communication from the NYSE to the effect that the Common Stock will be de-listed.
(g) The "Current Market Price" current market price per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
(h) In any case in which this Section 5.6 shall require that an adjustment be made immediately following a record date for an event, the Company may elect to defer, until such event, issuing to the holder of any Security converted after such record date the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion over and above the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its stock transfer agent to issue due bills or other appropriate evidence of the right to receive such shares.
Appears in 1 contract
Sources: Indenture (Coeur D Alene Mines Corp)
Adjustment of Conversion Price. The Conversion Price shall be ------------------------------ subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or (4) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of any Security Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities Notes been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the event that the Company shall issue distribute rights or warrants to subscribe for additional shares of the Company's capital stock Capital Stock (other than those the Common Stock referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 14075.6, make proper provision so that each holder of a Security Note who converts such Security Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of 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 (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 Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders shareholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by times the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share (based on the pro-rata portion of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date)) of Common Stock and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (specifically including any distributions of cash out of current or retained earnings of the Companyearnings), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by times the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions distributions, divided by the number of the shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
(g) In any case in which this Section 5.6 shall require that an adjustment be made immediately following a record date for an event, the Company may elect to defer, until such event, issuing to the holder of any Note converted after such record date the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion over and above the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence of the right to receive such shares.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1i) pay a dividend or make a distribution on its capital stock in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3ii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or shares, (4iii) combine its outstanding shares of Common Stock into a smaller number of shares or (iv) issue by reclassification of its Common StockStock any shares of capital stock of the Company, the Conversion Price conversion price in effect immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he or other capital stock of the Company that it would have owned or been entitled to receive immediately following such action had such Securities Security been converted immediately prior theretoto the occurrence of such action. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date date, in the case of a dividend or distribution and shall become effective distribution, or immediately after the effective date date, in the case of a subdivision subdivision, combination or combinationreclassification. If, as a result of an adjustment made pursuant to this subsection (a), the holder of any Securities thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of capital stock or shares of Common Stock and other capital stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed by the Company with the Trustee and with any conversion agent as soon as practicable) shall determine the allocation of the adjusted conversion price between or among shares of such classes of capital stock or shares of Common Stock and other capital stock.
(b) In case the Company shall issue rights rights, warrants or warrants options to substantially all holders of its outstanding shares of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price per share (as determined pursuant to subsection (fg) belowof this Section 1304) of the Common Stock on such record dateStock, the Conversion Price conversion price in effect immediately prior thereto shall be adjusted so that the same it shall equal the price determined by multiplying the Conversion Price conversion price in effect immediately prior to the date of issuance of such record date rights, warrants or options by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on the date of issuance of such record daterights, warrants or options (immediately prior to such issuance) plus the number of shares of Common Stock which that the aggregate offering price of the total number of shares so offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on the date of issuance of such record date rights, warrants or options immediately prior to such issuance) plus the number of additional shares of Common Stock offered (for subscription or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall be made successively whenever any rights, warrants or options are issued, and shall become effective immediately after the record date for the determination of stockholders entitled to receive such record daterights, warrants or options. In determining whether any rights, warrants or options entitle the holders to subscribe for or purchase shares of Common Stock at less that 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 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 shall be described in a certificate filed by the Company with the Trustee and with any conversion agent as soon as practicable); provided, however, that rights, warrants or options issued by the Company to all holders of its Common Stock entitling the holders thereof to subscribe for or purchase shares of Common Stock, which rights, warrants or options (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 issuance of Common Stock, in each case in clauses (i) through (iii) until the occurrence of a specified event or events, shall, for purposes of this Section 1304, not be deemed issued until the occurrence of the earliest such specified event.
(c) In case the Company shall distribute to all holders of its outstanding Common Stock any shares of any class of Capital Stock of the Company a capital stock (other than Common Stock), evidences evidence of its indebtedness or other assets (other than including securities and cash, but excluding any regular periodic cash dividend paid from surplus of the Company and dividends out or distributions payable in stock for which adjustment is made pursuant to subsection (a) of current this Section 1304) or retained earnings)rights, warrants or shall distribute to substantially all holders of Common Stock rights or warrants options to subscribe for or purchase securities of the Company (other than excluding those Securities referred to in subsection (b) aboveof this Section 1304), then in each such case the Conversion Price conversion price shall be adjusted so sot that the same shall equal the price determined by multiplying the Conversion Price conversion price in effect immediately prior to the record date of such distribution by a fraction of which the numerator shall be the Current Market Price per share (as determined as provided in pursuant to the subsection (fg) below) of this Section 1304 of the Common Stock on the record date mentioned below less the then fair market value on such record date (as determined determine by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and shall be described in a Board Resolutioncertificate filed by the Company with the Trustee and with any conversion agent as soon as practicable) of the portion of the capital stock or the evidence of indebtedness or the assets so distributed to the holder of one share of Common Stock or of such subscription rights rights, warrants or warrants options applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price per share of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock stockholders entitled to receive such distribution. Notwithstanding the foregoing; provided, in case however, that rights, warrants or options issued by the Company shall issue rights or warrants to all holders of its Common Stock entitling the holders thereof to subscribe for additional or purchase shares of securities of the Company's capital stock Company (other than excluding those referred to in subsection (b) aboveof this Section 1304), which rights, warrants or options (i) ("Rights") are deemed to substantially all holders be transferred with such shares of Common Stock, the Company may(ii) are not exercisable and (iii) are also issued in respect of future issuance of Common Stock, in lieu of making any adjustment pursuant to this Section 1407, 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, case in addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: clauses (i) if through (iii) until the occurrence of a specified events or events, shall, for purposes of this Section 1304, not be deemed issued until the occurrence of the earliest such specified event.
(d) In case the Company shall issue to an Affiliate shares of its Common Stock at a net price per share less than the Current Market Price per share (as determined pursuant to subsection (g) of this Section 1304) on the date the Company fixes the offering price of such additional shares, the conversion price shall be reduced immediately thereafter so that the same shall equal the price determined by multiplying such conversion occurs on or price in effect immediately prior to thereto by a fraction of which 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 numerator shall be number of shares of Common Stock equal outstanding immediately prior to the number of Conversion Shares is entitled at the time issuance of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of additional shares plus the number of shares of Common Stock into which that the principal amount aggregate offering price of the Security total number of shares of Common Stock so converted was convertible offered would purchase at the Current Market Price and the denominator shall be the number of shares of Common Stock outstanding immediately prior after the issuance of such additional shares. Such adjustment shall be made successively whenever such an issuance is made. This subsection (d) shall not apply to Common Stock issued to any Affiliate under a bonafide employee or director benefit plan adopted by the Distribution Date would have been entitled on Board of Directors and approved by the Distribution Date in accordance with the terms and provisions holders of and applicable to the RightsCommon Stock when required by law.
(de) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its the Company's Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant referred to paragraph in subsection (c) of this SectionSection 1304) (or in connection with a transaction to which Section 1311 applies) in an aggregate amount that, together with the sum of (xA) the aggregate amount of any other distributions to all holders of its the Company's Common Stock made exclusively in cash plus (yexcluding any cash that was distributed as part of a distribution referred to in subsection (c) all Excess Payments, or in each case made connection with a transaction to which Section 1311 applies) within the 12 months preceding the date fixed for determining the stockholders determination of shareholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price conversion price adjustment pursuant to paragraphs (c) or this subsection (e) has been made and (B) 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 shall be described in a certificate filed by the Company with the Trustee and with any conversion agent as soon as practicable) of other consideration payable in respect of any previous tender offer by the Company or a Subsidiary for the Company's Common Stock consummated within the 12 months preceding such distribution and in respect of which no adjustment pursuant to subsection (f) of this Section or this paragraph (d) 1304 has been made, exceeds 1510% of the product of the Current Market Price per share (determined as provided in paragraph pursuant to subsection (fg) of this SectionSection 1304) of the Common Stock on the Distribution Record Date multiplied by such date of determination times the number of shares of Common Stock outstanding on such date the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price conversion price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price the conversion price in effect immediately prior to the effectiveness close of the Conversion Price reduction contemplated by this paragraph (d) business on such date of determination by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph pursuant to subsection (fg) of this SectionSection 1304) of the Common Stock on the Distribution Record Date such date of determination less the amount of cash to be distributed at such cash and other consideration (including any Excess Payments) so distributed time applicable to one share of Common Stock (equal and the denominator of which shall be such Current Market Price, such reduction to become effective immediately prior to the opening of business on the day after such date of determination.
(f) In case a tender offer made by the Company or any Subsidiary for all or any portion of the Company's Common Stock shall be consummated and such tender offer shall involve an aggregate amount consideration having a fair market value (as determined in good faith by the Board of Directors, whose determination shall be conclusive and shall be described in a certificate filed by the Company with the Trustee and with any conversion agent as soon as practicable) on the last time (the "Expiration Time") tenders may be made pursuant to such tender offer (as it may have been amended) that, together with 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 shall be described in a certificate filed by the Company with the Trustee and with any conversion agent as soon as practicable), of other consideration paid or payable in respect of any previous tender offer by the Company or a Subsidiary for all or any portion of the Company's Common Stock consummated within the 12 months preceding the consummation of such tender offer and in respect of which no conversion price adjustment pursuant to this paragraph (f) has been made, such cash and plus the fair market value of other consideration to be calculated in each case as of the expiration of each such previous tender offer, exceeds 10% of the product of the Current market Price per share (including any Excess Paymentsdetermined pursuant to subsection (g) divided by of this Section 1304) of the Common Stock at the Expiration Time times the number of shares of Common Stock outstanding on (including any tendered shares) at the Distribution Record Date) and Expiration Time, the denominator conversion price shall be such 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 pursuant to subsection (fg) of this SectionSection 1304) of the Common Stock at the Expiration Time times the number of shares of Common Stock outstanding (including any tendered shares) at the Expiration Time minus (ii) the fair market value (determined as aforesaid) of the aggregate consideration paid or payable to stockholders based on the Distribution Record Datenumber of validly tendered shares to be purchased and not withdrawn prior to the Expiration Time (the number of shares so purchased being hereinafter referred to as the "Purchased Shares") and the denominator of which 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 Distribution Record DateExpiration Time.
(eg) In case a tender offer or other negotiated transaction made by For the Company or purpose of any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of computation under subsections (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Companyb), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"c), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph ), (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph and (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase DateSection 1304, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day trading day on the exchange or market referred to in determining such Daily Market Prices daily market prices prior to the time Time of determination Determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or warrants, such warrants distribution, such issuance of Common Stock to an Affiliate or such other distribution or such negotiated transaction tender offer, as the case may be, through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the Time of Determination.
(h) In any case in which this Section 1304 shall require that an adjustment be made immediately following a record date or an effective date, the Company may elect to defer (but only until five Business Days following the filing by the Company with the Trustee and any conversion agent of the certificate required by Section 1305) issuing to the holder of any Security converted after such record date or effective date the shares of Common Stock issuable upon such conversion over and above the shares of Common Stock issuable upon such conversion on the basis of the conversion price prior to adjustment, and paying to such holder any amount of cash in lieu of a fractional share.
(i) No adjustment in the conversion price shall be required to be made unless such adjustment would require an increase or decrease of at least 1% of such price; provided, however, that any adjustments that by reason of this subsection (i) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 1304 shall be made to the nearest cent or to the nearest 1/100th of a share, as the case may be. Anything in this Section 1304 to the contrary notwithstanding, the Company shall be entitled to make such reduction in the conversion price, in addition to those adjustments required by this Section 1304, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock or securities or distribution of securities convertible into or exchangeable for stock hereafter made by the Company to its shareholders shall not be taxable to the recipients.
(j) In the event that at any time as a result of determinationan adjustment made pursuant to subsection (a) of this Section 1304, the holder of any Security thereafter surrendered for conversion shall become entitled to receive any shares of the Company other than shares of Common Stock, thereafter the conversion price of such other shares so receivable upon conversion of any Security shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to Common Stock contained in this Article Thirteen.
Appears in 1 contract
Sources: Indenture (Converse Inc)
Adjustment of Conversion Price. The Conversion Price shall be is subject to adjustment from time to time as follows:
upon the occurrence of certain events, including (ai) In case the Company shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or (4) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of as a dividend or distribution and shall become effective immediately after on the effective date in Common Stock, (ii) the case of a subdivision or combination.
combination of the outstanding Common Stock, (biii) In case the Company shall issue rights distribution to all or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such warrants, options or other rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the then Average Current Market Price (as determined pursuant to subsection defined in the Certificate of Designations), (fiv) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute distribution to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities of shares of capital stock of the Corporation (other than those Securities referred to in subsection (b) aboveshares of Preferred Stock upon exercise of a Right), then in each such case evidences of indebtedness, or other non-cash assets (including securities of any Corporation other than the Conversion Price shall be adjusted so that Corporation), (v) the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior distribution to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed all or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the substantially all holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoingof warrants, in case the Company shall issue options or other rights or warrants to subscribe for additional shares of the Company's capital stock its securities (other than those referred to in subsection (biii) above), and (vi) ("Rights") the distribution to all or substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, that (together with the sum of (x) the aggregate amount of any all other cash distributions to all or substantially all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the preceding 12 months preceding the date fixed for determining the stockholders entitled not triggering a conversion price adjustment) exceeds an amount equal to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 1520% of the product of the Average Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date business day immediately preceding the day on which the Corporation declares such distribution multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date such date (excluding shares held in the treasury of the CompanyCorporation). Issuances of options and securities convertible into Common Stock are deemed to be issuances of the underlying Common Stock for purposes of adjustments to the conversion price. Whenever the conversion price is adjusted, the Corporation will promptly mail to holders of Preferred Stock a notice of adjustment briefly stating the facts requiring the adjustment and the manner of computing it. Such adjustment shall reduce the Conversion Price shall be reduced so that to fully offset the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior economic dilution to the effectiveness of the Conversion Price reduction contemplated by this paragraph Preferred Stock (d) by a fraction of which the numerator shall be the Current Market Price per share (determined on an as provided in paragraph (f) of this Sectionconverted basis) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) occurrence of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made events described in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of clauses (i) 30 consecutive Business Days ending on - (vi) above, except that no adjustment of the last full Trading Day on conversion price will be required to be made in any case until cumulative adjustments amount to a change in the exchange conversion price of 1% or market referred more, but any such adjustment that would otherwise be required to be made shall be carried forward and taken into account in determining such Daily Market Prices prior any subsequent adjustment. All calculations will be made either to the time nearest cent or the nearest 1/100 of determination a share. If the Corporation reclassifies or (ii) the period commencing on the date next succeeding the first public announcement changes its outstanding Common Stock, or consolidates with or merges into or sells or conveys all or substantially all of the issuance assets of such rights the Corporation as an entirety to any person, or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred is a party to in determining such Daily Market Prices prior to the time of determination.a
Appears in 1 contract
Adjustment of Conversion Price. (1) The Conversion Price shall will be subject to adjustment from time to time in the events and in the manner provided as follows.
(2) Upon the Trustee receiving a Notice of Non-Qualification, then the Conversion Price will immediately be adjusted to equal $1.82, being a rate of 550 Common Shares for each $1,000 principal amount of Debentures.
(3) If and whenever, at any time after the date hereof and prior to the Time of Expiry, the Corporation:
(a) In case the Company shall issues Common Shares (1or securities convertible into or exchangeable for Common Shares) pay a dividend in shares of Common Stock to holders of Common Stock, Shares as or by way of a stock dividend or other distribution (2) make a distribution other than Dividends Paid in shares the Ordinary Course or dividends pursuant to any dividend reinvestment plan in force from time to time or by way of Common Stock dividends to holders of Common Stock, Shares where such holders may elect to receive such dividends in the form of Common Shares (3or securities convertible into or exchangeable for Common Shares) subdivide instead of by way of cash Dividends Paid in the Ordinary Course); 144554\0512933.WP
(b) makes a distribution to holders of Common Shares on its outstanding shares of Common Stock Shares payable in Common Shares (or securities convertible into or exchangeable for Common Shares) (other than Dividends Paid in the Ordinary Course);
(c) subdivides its outstanding Common Shares into a greater number of shares of Common Stock or Shares; or
(4d) combine consolidates its outstanding shares of Common Stock Shares into a smaller number of shares Common Shares, (any of such events in paragraphs (a), (b), (c) and (d) herein referred to as a "Common StockShare Reorganization"), then the Conversion Price in effect immediately prior to such action shall will be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become adjusted, effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination occurrence of a Common Share Reorganization, as the case may be, at which the holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe Shares are determined for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price (as determined pursuant to subsection (f) below) purpose of the Common Stock on such record dateShare Reorganization, 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 effective date or record date by a fraction fraction, the numerator of which the numerator shall will be the number of shares Common Shares outstanding on such effective date or record date before giving effect to such Common Share Reorganization and the denominator of which will be the number of Common Stock Shares that are or would be outstanding immediately after such date after giving effect to such Common Share Reorganization (including, in the case where securities exchangeable for or convertible into Common Shares are distributed, the number of Common Shares that would have been outstanding had all such securities been exchanged for or converted into Common Shares on such effective date or record date).
(4) If and whenever, at any time after the date hereof and prior to the Time of Expiry, the Corporation fixes a record date for the issue of rights, options or warrants to all or substantially all of the holders of Common Shares under which such holders are entitled, during a period expiring not more than 45 days after the date of such issue (the "Rights Period"), to subscribe for or purchase Common Shares (or securities convertible into or exchangeable for Common Shares) at a price per share to the holder (or at a conversion or exchange price per share during the Rights Period to the holder in the case of securities convertible into or exchangeable for Common Shares) of less than 95% of the Current Market Price for the Common Shares on such record date, plus other than rights to receive dividends, in lieu of receiving cash Dividends Paid in the number of shares of Ordinary Course, in Common Stock which Shares, or securities convertible into or exchangeable for Common Shares having a fair market value, as determined by the aggregate offering price Directors at the time such dividend is declared, based upon the Current Market Price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase Shares at such Current Market Pricetime, and that is substantially equivalent to the amount of which such cash dividend (any of such events herein referred to as a "Rights Offering"), then the denominator shall Conversion Price will be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become adjusted, effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock end of the Company other than Common StockRights Period, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the a price determined by multiplying the Conversion Price in effect immediately prior to the date end of such distribution the Rights Period by a fraction fraction:
(a) the numerator of which the numerator shall will be the Current Market Price aggregate of: 144554\0512933.WP
(determined i) the number of Common Shares outstanding as provided in subsection (f) below) of the Common Stock on the record date mentioned below less for the then fair market value Rights Offering; and
(as ii) a number determined by dividing (A) either (I) the Board product of Directorsthe number of Common Shares issued or subscribed for during the Rights Period upon the exercise of the rights, whose determination shall be conclusive evidence warrants or options under the Rights Offering and the price at which such Common Shares are offered, or, as the case may be, (II) the product of the exchange or conversion price of such fair market value securities exchangeable for or convertible into Common Shares and described in a Board Resolution) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share number of Common Stock, and of Shares for or into which the denominator shall be such securities so offered pursuant to the Rights Offering could have been exchanged or converted during the Rights Period, by (B) the Current Market Price of the Common StockShares as of the record date for the Rights Offering, and
(b) the denominator of which will be the number of Common Shares outstanding, or the number of Common Shares which would be outstanding if all the exchangeable or convertible securities were exchanged for or converted into Common Shares during the Rights Period, after giving effect to the Rights Offering and including the number of Common Shares actually issued or subscribed for during the Rights Period upon exercise of the rights, warrants or options under the Rights Offering. Such adjustment shall become effective Any Debentureholder who has exercised the right to convert Common Shares in accordance with this Article 4 during the period beginning immediately after the record date for a Rights Offering and ending on the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 last day of the Rights shall be entitled to receive upon such conversionPeriod for the Rights Offering will, in addition to the shares of Common Stock issuable Shares to which that holder would otherwise be entitled upon such conversion (the "Conversion Shares")conversion, a be entitled to that number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of additional Common Stock Shares equal to the number of Conversion Shares is entitled at result obtained when the time of such conversion in accordance with difference, if any, between the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of 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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness end of such Rights Period and the Conversion Price, as adjusted for such Rights Offering pursuant to this subsection, is multiplied by the number of Common Shares received upon the conversion of the Debentures held by such Holder during such period, and the resulting product is divided by the Conversion Price reduction contemplated as adjusted for such Rights Offering pursuant to this subsection; provided that the provisions of section 4.5 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 Shares will be deemed to have been issued to the Debentureholder immediately following the end of the Rights Period and a certificate for such additional Common Shares will be delivered to such Holder within 15 Business Days following the end of the Rights Period. To the extent that any such rights, options or warrants are not so exercised on or before the expiry thereof, the Conversion Price will be readjusted to the Conversion Price which would then be in effect based on the number of Common Shares (or the securities convertible into or exchangeable for Common Shares) actually delivered on the exercise of such rights, options or warrants.
(5) If and whenever, at any time after the date hereof and prior to the Time of Expiry, the Corporation fixes a record date for the issue or the distribution to all or 144554\0512933.WP substantially all the holders of Common Shares of (a) securities of the Corporation, including rights, options or warrants to acquire securities of the Corporation or any of its cash, property or assets and including evidences of indebtedness or (b) any cash, property or other assets, including evidences of indebtedness, and if such issuance or distribution does not constitute a Dividend Paid in the Ordinary Course, a Common Share Reorganization or a Rights Offering (any of such non-excluded events herein referred to as a "Special Distribution"), the Conversion Price will be adjusted effective immediately after such record date to a price determined by this paragraph (d) multiplying the Conversion Price in effect on such record date by a fraction fraction:
(i) the numerator of which will be:
(A) the numerator shall be product of the number of Common Shares outstanding on such record date and the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock Shares on such record date; less
(B) the Distribution Record Date less fair market value, as determined by the amount Directors (whose determination will be conclusive), to the holders of Common Shares of such cash and securities, cash, property or other consideration assets so issued or distributed in the Special Distribution; and
(including any Excess Paymentsii) so distributed applicable to one share the denominator of Common Stock (equal to which will be the aggregate amount product of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock Shares outstanding on the Distribution Record Date) such record date and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock Shares on such record date. To the extent that any Special Distribution Record Dateis not so made or to the extent that any such rights, such reduction to become effective immediately options or warrants so issued or distributed are not exercised prior to the opening of business on expiry thereof, the day following Conversion Price will be immediately readjusted, with retroactive effect to the Distribution Record Daterecord date, to the Conversion Price which would then be in effect based upon such securities or property or other assets as actually distributed.
(e6) In case If and whenever, at any time after the date hereof and prior to the Maturity Date, there is a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion reclassification of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer Shares at any time outstanding or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders a change or exchange of the Common Stock made Shares into or for other shares or into or for other securities or any other capital reorganization (other than a Common Share Reorganization), or a consolidation, amalgamation, merger, arrangement or other form of business combination of the Corporation with or into any other company or other entity (other than a consolidation, amalgamation, merger, arrangement or business combination which does not result in cash any reclassification of the outstanding Common Shares or a change or exchange of the Common Shares into or for other shares or into or for other securities), or a transfer of the undertaking or assets of the Corporation as an entirety or substantially as an entirety to another corporation or other entity in which the holders of Common Shares are entitled to receive shares, other securities or other property (any of such events herein referred to as a "Capital Reorganization"), any Holder of Debentures who exercises the right to convert Debentures into Common Shares pursuant to Debentures then held after the effective date of such Capital Reorganization will be entitled to receive, and will accept for the same aggregate consideration, in lieu of the number of Common Shares to which such Holder was previously entitled upon 144554\0512933.WP such conversion, the aggregate number of shares, other securities or other property (including any distributions cash) which such holder would have been entitled to receive as a result of cash out of current or retained earnings such Capital Reorganization if, on the effective date thereof, the holder had been the registered holder of the Companynumber of Common Shares to which such holder was previously entitled upon conversion. The Corporation 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. Appropriate adjustments will be made as a result of any such Capital Reorganization in the application of the provisions set forth in this Article 4 with respect to the rights and interests thereafter of holders of Debentures, such that the provisions set forth in this Article 4 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. Any such adjustment, subject to any approval required to be obtained from any stock exchange on which the Common Shares are listed, will be made by and set forth in an indenture supplemental hereto approved by action of the Directors and by the Trustee and entered into pursuant to the provisions of Article 13 and will for all purposes be conclusively deemed to be an appropriate adjustment.
(7) If the purchase price provided for in any rights, options or warrants (the "Rights Offering Price") referred to in subsections 4.3(4) or (5) is decreased, the Conversion Price will forthwith be changed so as to decrease the Conversion Price to the Conversion Price that would have been obtained if the adjustment to the Conversion Price made under subsection 4.3(4) or (4), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (be, with respect to such rights, options or warrants had been made on the "Purchase Date")basis of the Rights Offering Price as so decreased, and as to which no adjustment pursuant to paragraph (c) or paragraph (d) provided that the terms of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including subsection will not apply to any tendered shares but excluding any shares held decrease in the treasury of Rights Offering Price resulting from terms in any such rights, options or warrants designed to prevent dilution except to the Company or any Subsidiary of extent that the Company) on the Purchase Date, resulting decrease in the Conversion Price shall under this subsection would be reduced so that greater than the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributionsdecrease, if any, applicable in the Conversion Price to one share of Common Stock (equal to be made under the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) terms of this Section) section by virtue of the Common Stock on occurrence of the Purchase Date, event giving rise to such reduction to become effective immediately prior to decrease in the opening of business on the day following the Purchase DateRights Offering Price.
(f) The "Current Market Price" per share 8) In any case in which this section 4.3 shall require that an adjustment shall become effective on or immediately after a record date for or effective date of an event referred to herein, the Corporation may defer, until the occurrence of such event, issuing to the Holder of any Debenture converted after such record date or effective date and before the occurrence of such event the additional Common Stock on any date shall be deemed Shares issuable upon such conversion or the additional securities or property to be the average which such Holder is entitled by reason of the Daily Market Prices adjustment required by such event; provided, however, that the Corporation shall deliver to such Holder an appropriate instrument evidencing such Holder's right to receive such additional Common Shares, securities or property upon the occurrence of such event and the right to receive any distributions made on such additional Common Shares, securities or property on and after the Date of Conversion or such later date on which such Holder would, but for the shorter provisions of this subsection (i) 30 consecutive Business Days ending on 8), have become the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time holder of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance record of such rights additional Common Shares, securities or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred property pursuant to in determining such Daily Market Prices prior to the time of determination.subsection 4.2(2). 144554\0512933.WP
Appears in 1 contract
Sources: Trust Indenture (Dakota Mining Corp)
Adjustment of Conversion Price. The Conversion Price with respect to Convertible Securities of a series shall be subject to adjustment adjusted from time to time as followsfollows with respect to events that take place after the initial issuance of any Securities of such series:
(a1) In case if the Company shall (1i) pay a dividend in shares of Common Stock to holders of Common Stock, (2) or make a distribution in shares of Common Stock to holders of on the Common Stock, (3ii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or shares, (4iii) combine its outstanding shares of Common Stock into a smaller number of shares or (iv) issue by reclassification of its Common StockStock any shares of capital stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted deemed to be proportionately adjusted, so that the holder any Holder of any Convertible Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other capital stock of the Company which he would have owned or been entitled to receive immediately following such action had such Securities Convertible Security been converted immediately prior thereto. Any If in any reclassification the holders of Common Stock are entitled to make an election between different forms of consideration, the Holders shall be deemed to have elected to receive the consideration payable to a plurality of the holders of Common Stock who have not duly filed elections as to the consideration to be received. An adjustment made pursuant to this subsection (a1) shall become effective immediately immediately, except as provided in subsection (6) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification.
(b2) In case the Company shall issue rights or warrants generally to substantially all holders of Common Stock rights, options or warrants entitling them such holders (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than exceeding 45 days after from the date of such record dateissuance) 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 current market price per share (as determined pursuant to subsection (f5) below) of the Common Stock on such the record datedate mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of issuance of such record date rights, options or warrants by a fraction fraction, of which which
(i) the numerator shall be the sum of (A) the number of shares of Common Stock outstanding on the date fixed for the determination of stockholders entitled to receive such record daterights, plus options or warrants, and (B) the number of shares of Common Stock which the aggregate offering price of the offered total number of shares of Common Stock (so offered for subscription or the aggregate conversion price of the convertible securities so offered) purchase would purchase at such Current Market Pricecurrent market price (determined by multiplying such total number of shares by the exercise price of such rights, options or warrants and dividing the product so obtained by such current market price), and of which which
(ii) the denominator shall be the sum of (A) the number of shares of Common Stock outstanding on the date fixed for the determination of stockholders entitled to receive such record date plus rights, options or warrants, and (B) the number of additional shares of Common Stock offered (or into which the convertible securities are so offered are convertible)for subscription or purchase. Such adjustments adjustment shall become effective immediately immediately, except as provided in subsection (6) below, after the record date for the determination of holders entitled to receive such record daterights, options or warrants.
(c3) In case the Company shall distribute shall, by dividend or otherwise, distribute, to substantially all holders of Common Stock shares Stock, evidences of any class of Capital Stock of indebtedness, equity securities (including equity interests in the Company Company's Subsidiaries) other than Common Stock, evidences of indebtedness or other assets (other than cash dividends paid out of earned surplus of the Company or current or retained earningsnet earnings as shown on the books of the Company and other than Extraordinary Cash Dividends, which are governed by the provisions of subsection (4) below), or shall distribute to substantially all holders of Common Stock rights rights, options or warrants entitling such Holders to subscribe for securities (other than those Securities referred to in subsection (b2) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which which
(i) the numerator shall be the Current Market Price current market price per share (determined as provided in subsection (f5) below) of the Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of Directors, whose determination shall shall, if made in good faith, be conclusive evidence of such fair market value and described in a Board Resolutionprovided to the Trustee) of the portion of the assets assets, evidence of indebtedness, equity securities or other securities so distributed or of such subscription rights rights, options or warrants applicable to one share of Common Stock, and of which which
(ii) the denominator shall be such Current Market Price current market price per share of the Common Stock. Such adjustment shall become effective immediately immediately, except as provided in subsection (6) below, after the record date for the determination of the holders of Common Stock stockholders entitled to receive such distribution. Notwithstanding the foregoing, with respect to the rights ("Rights") distributed under the Rights Agreement, dated as of June 4, 1989, between the Company and BankBoston, N.A. as amended and as it may be further amended after the date hereof and/or in case the event that and each time that the Company shall issue distribute any other rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection paragraph (b2) aboveof this Section) ("Additional Rights") pro rata to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, shall make proper provision so that each holder Holder of a Convertible Security who converts such Convertible Security (or any portion thereof) (A) after the date hereof in the case of Rights and (B) after the record date for any such distribution in the case of Additional Rights, and prior to the expiration or redemption of the Rights or Additional Rights, as the case may be, 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 or Additional 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 or Additional Rights of separate certificates evidencing such Rights or Additional Rights (the "Distribution Date"), the same number of Rights or Additional 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 or Additional Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights or Additional 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 term and provisions of and applicable to the Rights or Additional Rights. If, with respect to any distribution to which this paragraph (3) would otherwise apply, the fair market value of the portion of the assets so distributed applicable to one share of Common Stock exceeds the current market price per share of Common Stock or the current market price per share of Common Stock exceeds such fair market value by less than $1.00, then the adjustment provided by this subsection (3) shall not be made and in lieu thereof the provision of paragraph (8) shall apply to such distribution.
(d4) In case If the Company shall, by dividend or otherwise, at any time distribute generally to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of upon a distribution requiring a Conversion Price adjustment pursuant merger or consolidation to paragraph (c) of this Sectionwhich Section 4.05 applies) in an aggregate amount thatsuch that such dividend or distribution shall constitute an Extraordinary Cash Dividend, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Paymentsthen, and in each case made within such case, immediately after the 12 months preceding the close of business on such date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company)determination, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such the Conversion Price in effect immediately prior to the effectiveness close of business on the date fixed for determination of the Conversion Price reduction contemplated by this paragraph (d) stockholders entitled to receive such distribution by a fraction fraction, of which which
(i) the numerator shall be equal to (A) the Current Market Price current market price per share (determined as provided in paragraph (f5) of this Section) of the Common Stock on the Distribution Record Date date fixed for such determination less the (B) an amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate excess of such Extraordinary Cash Dividend over four times the per share amount of such cash the Company's most recently declared regular quarterly dividend and other consideration of which
(including any Excess Paymentsii) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be equal to such Current Market Price market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Dateshare.
(e5) In case a tender offer or other negotiated transaction made by For the Company or purpose of any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of computation under subsections (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company2), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c3) or paragraph (d4) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Dateabove, the Conversion Price shall be reduced so that the same shall equal the current market price determined by multiplying such 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 (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Sale Prices for the shorter 20 consecutive Trading Days commencing 30 Trading Days before the date in question.
(6) In any case in which this Section 4.04 shall require that an adjustment of the Conversion Price be made effective immediately following a record date, the Company may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), in which case the Company shall, with respect to any Convertible Security converted after such record date and before such adjustment shall have become effective, (i) 30 consecutive defer paying any cash payment pursuant to Section 4.03 or issuing to the Holder of such Convertible Security the number of shares of Common Stock and other capital stock of the Company issuable upon such conversion in excess of the number of shares of Common Stock and other capital stock of the Company issuable thereupon only on the basis of the Conversion Price prior to adjustment and (ii) not later than five Business Days ending after such adjustment shall have become effective, pay to such Holder the appropriate cash payment pursuant to Section 4.03 and issue to such Holder the additional shares of Common Stock and other capital stock of the Company issuable on such conversion.
(7) No adjustment of the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least one percent of the Conversion Price; provided, however, that any adjustments which by reason of this subsection (7) are not required to be made shall be carried forward and taken into account in any subsequent adjustment; and, provided, further, that each adjustment shall be required and made in accordance with the provisions of this Article Four (other than this subsection (7)) not later than such time as may be required in order to preserve the tax-free nature of a distribution to the holders of Convertible Securities or Common Stock. All calculations under this Article Four shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(8) If the Company makes a distribution to holders of its Common Stock of any of its assets, or debt securities or any rights, warrants or options to purchase securities of the Company that, but for the provisions of the last full Trading Day on sentence of subsection (3), would otherwise result in an adjustment in the exchange Conversion Rate, then, from and after the record date for determining the holders of Common Stock entitled to receive the distribution, a Holder of a Convertible Security that converts such Convertible Security in accordance with the provisions of this Indenture shall upon such conversion be entitled to receive, in addition to the shares of Common Stock into which the Convertible Security is convertible, the kind and amount of securities, cash or market referred to in determining other assets comprising the distribution that such Daily Market Prices Holder would have received if such Holder had converted the Convertible Security immediately prior to the time record date for determining the holders of determination or Common Stock entitled to receive the distribution.
(9) Whenever the Conversion Price shall be adjusted as herein provided, the Company shall promptly (i) file with the Trustee and each Conversion Agent an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth in reasonable detail the facts requiring such adjustment and the manner of computing the same, and (ii) mail or cause to be mailed a notice stating that the period commencing Conversion Price has been adjusted and setting forth the adjusted Conversion Price to each Holder of Convertible Securities at his address as the same appears on the date next succeeding Security Register. Anything in this Section 4.04 to the first public announcement contrary notwithstanding, the Company shall be entitled to make such reductions in the Conversion Price, in addition to those required by this Section 4.04, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of the issuance shares, distribution of such rights or such warrants to purchase stock or such securities, or distribution of other distribution or such negotiated transaction through such last full trading day on assets (other than cash dividends) hereafter made by the exchange or market referred Company to in determining such Daily Market Prices prior to the time of determinationits stockholders shall not be taxable.
Appears in 1 contract
Sources: Senior Debt Indenture (Hasbro Inc)
Adjustment of Conversion Price. The conversion price (herein called the "Conversion Price Price") shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) or make a distribution in shares of Common Stock to holders of Common Capital Stock, (32) subdivide its outstanding shares of Common Capital Stock into a greater number of shares of Common Stock or (43) combine its outstanding shares of Common Capital Stock into a smaller number of shares of Common Stockshares, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Capital Stock which he would have owned immediately following such action had such Securities Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (e) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. If after an adjustment a holder upon conversion of the Capital Stock may receive shares of two or more classes of Capital Stock of the Company, the Company shall determine the allocation of the adjusted Conversion Price between the classes of Capital Stock. After such allocation, the conversion privilege and Conversion Price of each class of Capital Stock shall thereafter be subject to adjustment on terms comparable to those set forth in this paragraph.
(b) In case the Company shall issue rights or warrants to substantially all holders of Common Capital Stock entitling them (for a period commencing no earlier not exceeding 45 days from the date of such issuance) to subscribe for or purchase shares of Capital Stock at a price per share less than the current market price per share (as determined pursuant to subsection (d) below) of the Capital Stock on the record date mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, in accordance with the following formula: N x P AP = -------------------- CP x O + M where: AP = the adjusted Conversion Price. CP = the current Conversion Price. O = the number of shares of Capital Stock outstanding on the record date for the distribution. N = the number of additional shares of Capital Stock offered. P = the offering price per share of the additional shares. M = the current market price per share of Capital Stock on the record date. Such adjustment shall become effective immediately, except as provided in subsection (e) below, after the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record datewarrants.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness indebtedness, equity securities other than Capital Stock or other assets (other than cash dividends out of or other distributions to the extent paid from current or retained earningsearnings of the Company), or shall distribute to substantially all holders of Common Capital Stock rights or warrants to subscribe for to securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that in accordance with the same shall equal following formula: CP x M - F AP = -------------------- M where: AP = the adjusted Conversion Price. CP = the current Conversion Price. M = the current market price determined by multiplying the Conversion Price in effect immediately prior to the date per share of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Capital Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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 Rightsbelow.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price as stated in paragraph 8 of the Securities shall be subject to adjustment adjusted from time to time by the Company as follows:
(a) In case the Company shall (1i) pay a dividend in shares of Common Stock to all holders of Common Stock, (2ii) make a distribution in shares of Common Stock to all holders of Common Stock, (3iii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock shares, or (4iv) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stockshares, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive that number of shares of Common Stock which would have been received upon consummation of such event by a holder of the number of shares of Common Stock into which he would such Security might have owned immediately following such action had such Securities been converted immediately prior theretoto such event. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend in shares or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue warrants, options or other rights to all or warrants to substantially all holders of its Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into or exchangeable for Common Stock) at a price per share less than the Average Current Market Price per share (as determined pursuant to defined in subsection (f) belowe) of the this Section 10.06) of Common Stock on at the record date for the determination of stockholders entitled to receive such record datewarrants, options or other rights, the Conversion Price in effect immediately prior thereto shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered total number of shares of Common Stock so offered (or the aggregate conversion price Conversion Price of the convertible or exchangeable securities so offered) would purchase at such Average Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible or exchangeable securities so offered are convertibleconvertible or exchangeable for). Such adjustments adjustment shall be made successively whenever any such warrants, options or other rights are issued, and shall become effective immediately after such record date. If at the end of the period during which such warrants, options or other rights are exercisable, not all warrants, options or other rights shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities or exchange of exchangeable securities actually issued). The Company shall not issue any warrants, options or other rights in respect of shares of Common Stock held in the treasury of the Company.
(c) In case the Company shall distribute to all or substantially all holders of its Common Stock (i) any shares of capital stock of the Company (other than shares of the Company's Series A Participating Cumulative Preferred Stock ("Series A Preferred Stock") upon exercise of the rights of holders of Common Stock shares and Employee Preferred Stock to purchase one one-hundredth of a share of Series A Preferred Stock), (ii) evidences of indebtedness, (iii) other non-cash assets (including securities of any class of Capital Stock of the Company company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earningsthe Company), or shall distribute to substantially all holders of Common Stock (iv) warrants, options or other rights or warrants to subscribe for or purchase any of its securities (other than excluding those Securities referred to in subsection (b) aboveof this Section 10.06), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Average Current Market Price (determined as provided in subsection (f) below) per share of the Common Stock on the record date mentioned below less the then fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a Board Resolutionvalue) of the portion of the capital stock or assets or evidences of indebtedness so distributed or of such subscription warrants, options or other rights or warrants applicable to one share of Common StockStock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator shall be such the Average Current Market Price per share of the Common StockStock on such record date. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock stockholders entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute (a "Triggering Distribution") to all or substantially all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other cash distributions to all or substantially all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining of payment of the stockholders entitled to such distribution (the "Triggering Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) 10.06 has been made, exceeds 1520% of the product of the Average Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Trading Day (the "Determination Date") immediately preceding the day on which such Triggering Distribution Record Date is declared by the Company multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date such date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) Determination Date by a fraction of which the numerator shall be the Average Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Determination Date less the amount of such cash and other consideration (including any Excess Payments) so distributed within such 12 months (including, without limitation, the Triggering Distribution) applicable to one share of Common Stock (equal to determined on the aggregate amount basis of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Determination Date) and the denominator shall be such Average Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Determination Date, such reduction to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution Record Dateis paid.
(e) In case a tender offer or other negotiated transaction made by For the Company or purpose of any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of computation under subsections (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Companyb), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph and (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date10.06, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Average Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market daily Closing Prices for the shorter of 30 consecutive Trading Days commencing 45 Trading Days before (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred Determination Date with respect to in determining such Daily Market Prices prior to the time distributions under subsection (d) of determination this Section 10.06 or (ii) the record date with respect to distributions, issuances or other events requiring such computation under subsection (b) or (c) of this Section 10.06. The Average Current Market Price of Common Stock will be appropriately and equitably adjusted to reflect the effects of any stock dividend, stock split, reclassification, recapitalization, combination or distribution of assets, securities or other property (other than ordinary course cash dividends) to holders of Common Stock by the Company affecting the Common Stock, the record date, ex-dividend date or similar date of which occurs during the period commencing in which the Average Current Market Price is to be determined. Issuances of options and securities convertible into Common Stock are deemed to be issuances of the underlying Common Stock for purposes of adjustments to the Conversion Price.
(f) In any case in which this Section 10.06 shall require that an adjustment be made following a record date or a Determination Date, as the case may be, established for purposes of this Section 10.06, the Company may elect to defer (but only until five Trading Days following the filing by the Company with the Trustee of the certificate described in Section 10.10) issuing to the Holder of any Security converted after such record date or Determination Date the shares of Common Stock and other capital stock of the Company issuable upon such conversion over and above the shares of Common Stock and other capital stock of the Company issuable upon such conversion only on the date next succeeding basis of the first public announcement Conversion Price prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence prepared by the Company of the right to receive such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determinationshares.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case If, prior to December 31, 2002, the Company shall issue or sell (1or, in accordance with Section 8.05(b), shall be deemed to have issued and ------- sold) pay a dividend in any shares of Common Stock to holders of Common Stock, for a consideration per share (2the "Issuance Price") make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or (4) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, less than the Conversion Price in effect immediately prior to such action issue or sale, then, upon such issue or sale, the Conversion Price shall be adjusted so that reduced to an amount equal to the holder Issuance Price. For purposes of this Section 8.05(a), any Security thereafter surrendered ------- issuance or sale (or deemed issuance and sale) for conversion no consideration shall be entitled deemed to receive be an issue or sale at an Issuance Price or $.01.
(b) For the number purpose of subsection (a) of this Section 8.05, the -------------- ---- following clauses shall also be applicable:
(i) In case at any time the Company shall grant (whether directly or by assumption in a merger in which the Company is the surviving Company or otherwise) any rights to subscribe for or to purchase, or any options for the purchase of, Common Stock or any stock or securities (including debt securities) convertible into or exchangeable for Common Stock (such convertible or exchangeable stock or securities being herein called "Convertible Securities"), ---------------------- whether or not such rights or options or the right to convert or exchange any such Convertible Securities are immediately exercisable, the Company shall be deemed to have issued and sold shares of Common Stock at an Issuance Price equal to the price per share for which he would have owned immediately following Common Stock is issuable upon the exercise of such action had rights or options or upon conversion or exchange of such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combinationConvertible Securities.
(bii) In case the Company shall issue (whether directly or by assumption in a merger in which the Company is the surviving Company or otherwise) or sell any Convertible Security, whether or not the rights to exchange or warrants convert thereunder are immediately exercisable, the Company shall be deemed to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants have issued and expiring not more than 45 days after such record date) to subscribe for or purchase sold shares of Common Stock (or securities convertible into Common Stock) at a an Issuance Price equal to the price per share less than the Current Market Price (as determined pursuant to subsection (f) below) of the for which Common Stock on is issuable upon conversion or exchange of such record dateConvertible Securities.
(iii) Notwithstanding anything herein to the contrary, the Conversion Price provisions of this Section 8.05 shall be adjusted so that not apply to the same shall equal grant of stock options or the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number issuance of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (in either case to officers or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury directors of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined to entities by multiplying such 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 (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Datethey are employed.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time adjusted as follows:
(aA) In case At the time the Company's audited financial statements for any given fiscal year are filed with the Securities and Exchange Commission ("SEC"), if the Company did not realize its Projected EBITDA or Projected Net Income for such fiscal year, the Conversion Price for Conversion Shares issued during and subsequent to the fiscal year covered by the audited financial statements shall be adjusted downward by a percentage equal to the greater of (I) the percentage difference between Projected EBITDA and actual EBITDA for such fiscal year or (II) the percentage difference between Projected Net Income and actual Net Income for such fiscal year. Within ten (10) days after the Company's audited financial statements are filed with the SEC, the Company shall issue a stock certificate to the Investor representing any additional Conversion Shares issuable as a result of the adjustment under this Section 3.2(i)(ii).
(1B) pay At the time the Company proposes a dividend strategic acquisition to the Investor, the Company and the Investor shall mutually agree on an appropriate adjustment to Projected EBITDA and Projected Net Income to reflect the added value to the Company realized by such acquisition.
(C) Upon the Issuance Of Additional Stock.
(I) If the Company shall issue, after the Issue Date, any Additional Stock without consideration, or for a consideration per share less than the Conversion Price in shares effect immediately prior to the issuance of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or (4) combine its outstanding shares of Common Stock into a smaller number of shares of Common such Additional Stock, the Conversion Price in effect immediately prior to such action issuance shall automatically be adjusted so that reduced to the holder per share price of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combinationAdditional Stock.
(bII) In case the Company shall issue rights or warrants to substantially all holders No adjustment of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so made in an amount less than one cent ($0.01) per share, provided that any adjustments which are not required to be made by reason of this sentence shall be carried forward and shall be taken into account in any subsequent adjustment made prior to three (3) years from the same date giving rise to the adjustment. Except to the limited extent provided for in Section 3.2(i)(ii)(E) hereof no adjustment of the Conversion Price pursuant to this Section 3.2(i)(ii)(C) shall equal have the price determined by multiplying effect of increasing the Conversion Price above the Conversion Price in effect immediately prior to such record date by a fraction adjustment.
(III) In the case of which the numerator issuance of Additional Stock for cash, the consideration shall be deemed to be the amount of cash paid therefor before deducting any reasonable discounts, commissions or other expenses allowed, paid or incurred by the Company for any underwriting or otherwise in connection with the issuance and sale thereof.
(IV) In the case of the issuance of Additional Stock for a consideration in whole or in part other than cash, the consideration other than cash shall be deemed to be the fair value thereof as determined by the Company's independent certified public accountants.
(V) In the case of the issuance (whether before, on or after the Issuance Date) of options to purchase or rights to subscribe for Common Stock, securities by their terms convertible into or exchangeable for Common Stock or options to purchase or rights to subscribe for such convertible or exchangeable securities, the following provisions shall apply for all purposes of this Section 3.2(i)(ii)(C):
(a) The aggregate maximum number of shares of Common Stock deliverable upon exercise (assuming the satisfaction of any conditions to exercise, including without limitation, the passage of time, but without taking into account potential anti-dilution adjustments) of such options to purchase or rights to subscribe for Common Stock shall be deemed to have been issued at the time such options or rights were issued and for a consideration equal to the consideration (determined in the manner provided in Section 3.2(i)(ii)(C)(III) and Section 3.2(i)(ii)(C)(IV), if any, received by the Company upon the issuance of such options or rights plus the minimum exercise price provided in such options or rights (without taking into account potential anti-dilution adjustments) for the Common Stock covered thereby.
(b) The aggregate maximum number of shares of Common Stock deliverable upon the conversion of or exchange (assuming the satisfaction of any conditions to conversion or exchange, including without limitation, the passage of time, but without taking into account potential anti-dilution adjustments) for any such convertible or exchangeable securities or upon the exercise of options to purchase or rights to subscribe for such convertible or exchangeable securities and the subsequent conversion or exchange therefor shall be deemed to have been issued at the time such securities were issued or such options or rights were issued and for a consideration equal to the consideration, if any, received by the Company for any such securities or related options or rights (excluding any cash received on account of accrued interest or accrued dividends), plus the minimum additional consideration, if any, to be received by the Company (without taking into account potential anti-dilution adjustments) upon the conversion or exchange of such securities or the exercise of any related options or rights (the consideration in each case to be determined in the manner provided in Section 3.2(i)(ii)(C)(III) and Section 3.2(i)(ii)(C)(IV) hereof.
(c) In the event of any change in the number of shares of Common Stock outstanding on deliverable or in the consideration payable to the Company upon exercise of such record dateoptions or rights or upon conversion of or in exchange for such convertible or exchangeable securities, plus including, but not limited to, a change resulting from anti-dilution adjustments, the Conversion Price, to the extent in any way affected by or computed using such options, rights or securities, shall be recomputed to reflect such change, but no further adjustment shall be made for the actual issuance of Common Stock or any payment of such consideration upon the exercise of any such options or rights or the conversion or exchange of such securities.
(d) Upon the expiration of any such options or rights, the termination of any such rights to convert or exchange or the expiration of any options or rights related to such convertible or exchangeable securities, the Conversion Price, to the extent in any way affected by or computed using such options, rights or securities or options or rights related to such securities, shall be recomputed to reflect the issuance of only the number of shares of Common Stock (and convertible or exchangeable securities which remain in effect) actually issued upon the aggregate offering price exercise of such options or rights, upon the conversion or exchange of such securities or upon the exercise of the offered shares of Common Stock options or rights related to such securities.
(or the aggregate conversion price of the convertible securities so offerede) would purchase at such Current Market Price, and of which the denominator shall be the The number of shares of Common Stock outstanding on such record date plus deemed issued and the number of additional shares of Common Stock offered consideration deemed paid therefor pursuant to Sections 3.2(i)(ii)(C)(V) (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(ca) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (band 3.2(i)(ii)(C)(V)(b) above), then in each such case the Conversion Price shall be appropriately adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of Directorsreflect any change, whose determination shall be conclusive evidence of such fair market value and described in a Board Resolution) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration termination or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this type described in Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date3.2(i)(ii)(C)(V)(c) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase DateSection 3.2(i)(ii)(C)(V)(d).
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price conversion price shall be subject to adjustment adjusted from time to time as follows:
(a) In case the Company shall hereafter (1i) pay a dividend or make a distribution on its Common Stock in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3ii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or shares, (4iii) combine its outstanding shares of Common Stock into a smaller number of shares, or (iv) issue by reclassification of its Common Stock any shares of Common Stockcapital stock of the Company, the Conversion Price conversion price in effect immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other capital stock of the Company which he would have owned immediately following such action had such Securities Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification. If, as a result of an adjustment made pursuant to this subsection (a) the holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of capital stock or shares of Common Stock and other capital stock of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed with the Trustee and with any Conversion Agent) shall determine in good faith the allocation of the adjusted conversion price between or among shares of such classes of capital stock or shares of Common Stock and other capital stock.
(b) In case the Company shall hereafter issue rights or warrants to substantially all holders of its outstanding shares of Common Stock generally entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of 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 current market price per share (as determined pursuant to subsection (fe) belowof this Section 5.04) of the Common Stock on such the record datedate mentioned below, 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 such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, date plus the number of shares of Common Stock which the aggregate offering price of the offered total number of shares of Common Stock (so offered for subscription or the aggregate conversion price of the convertible securities so offered) purchase would purchase at such Current Market Pricecurrent market price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (for subscription or into which the convertible securities so offered are convertible)purchase. Such adjustments adjustment shall be made successively whenever any such rights or warrants are distributed, and shall become effective immediately after the record date for the determination of stockholders entitled to receive such record daterights or warrants. If at the end of the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised, the adjusted conversion price shall be immediately readjusted to what it would have been based upon the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued).
(c) In case the Company shall hereafter distribute to all holders of its outstanding Common Stock shares of any class of Capital Stock of the Company other than Common Stock, generally evidences of its indebtedness or other assets (other than excluding cash dividends out of current or retained earnings), distributions) or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities of the Company (other than excluding those Securities referred to in subsection (b) aboveof this Section 5.04), then in each such case the Conversion Price conversion price of the shares of Common Stock shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price conversion price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in subsection (fe) belowof this Section 5.04) of the Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and shall be described in a Board Resolutionstatement filed with the Trustee and with any Conversion Agent) of the portion of the such evidences of indebtedness or assets (but not cash) so distributed to the holder of one share of Common Stock or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price current market price per share of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock stockholders entitled to receive such distribution. Notwithstanding the foregoingIn any case in which this subsection (c) is applicable, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 not 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 (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 Rightsapplicable.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other cash distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to of payment of such distribution (the "Distribution Record Date") and in respect of which no Conversion Price conversion price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph subsection (d) has been made, made previously exceeds an amount equal to 15% of the product of amount determined by multiplying the Current Market Price current market price per share (determined as provided in paragraph subsection (fe) of this SectionSection 5.04) of the Common Stock on the Distribution Record Date multiplied date fixed for stockholders entitled to receive such distribution by the number of shares of Common Stock outstanding on the Distribution Record Date such date (excluding shares held in the treasury Treasury of the Company), the Conversion Price conversion price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price the conversion price in effect immediately prior to the effectiveness of the Conversion Price conversion price reduction contemplated by this paragraph subsection (d) by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in paragraph subsection (fe) of this SectionSection 5.04) of the Common Stock on the Distribution Record Date date of such effectiveness less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date(determined as aforesaid), such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Datedate fixed for the payment of such distribution.
(e) In case a tender offer or other negotiated transaction made by For the Company or purpose of any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of computation under subsections (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Companyb), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph and (d) of this Section 5.04 or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Dateunder Section 5.03, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Pricecurrent market price" per share of Common Stock on any record date shall be deemed to be the average of the Daily Market Prices daily closing prices for the shorter five consecutive trading days immediately preceding the date in question. The closing price for each day shall be the last sale price regular way or, in case no such sale takes place on such day, the average of the closing bid and asked prices regular way, in either case on the New York Stock Exchange, or, if the shares of Common Stock are not listed or admitted to trading on such Exchange, on the principal national securities exchange on which the shares are listed or admitted to trading, or if they are not listed or admitted to trading on any national securities exchange, on the National Association of Securities Dealers Automated Quotation (i"NASDAQ") 30 consecutive national market system or any comparable system, or if the Common Stock is not listed on the NASDAQ system or a comparable system, the closing bid and asked prices as furnished by any member of the National Association of Securities Dealers, Inc. selected from time to time by the Company for that purpose.
(f) In any case in which this Section 5.04 shall require that an adjustment be made immediately following a record date, the Company may elect to defer (but only until five Business Days ending following the filing by the Company with the Trustee and any Conversion Agent of the certificate of Independent Public Accountants described in Section 5.05) issuing to the holder of any Security converted after such record date the shares of Common Stock issuable upon such conversion over and above the shares of Common Stock issuable upon such conversion on the last full Trading Day on basis of the exchange or market referred to in determining such Daily Market Prices conversion price prior to adjustment.
(g) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least 1% of such price; provided, however, that any adjustments which by reason of this subsection (g) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 5.04 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. Anything in this Section 5.04 to the contrary notwithstanding, the Company shall be entitled to make such reductions in the conversion price, in addition to those required by this Section 5.04, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock or securities, or distribution of securities convertible into or exchangeable for stock hereafter made by the Company to its stockholders shall not be taxable; provided that in no event shall such conversion price be less than the par value of the Common Stock at the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior reduction is made. No adjustment to the time of determination.conversion price pursuant to this Indenture shall reduce the conversion price below the then existing par value per share of
Appears in 1 contract
Sources: Indenture (Icn Pharmaceuticals Inc)
Adjustment of Conversion Price. The Conversion Price shall will be subject to adjustment from time to time as follows:
(a) In case if and whenever at any time prior to the Company shall Maturity Date, the Borrower:
(1i) pay a dividend in shares of subdivides or redivides any outstanding Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock Shares into a greater number of shares of Common Stock Shares;
(ii) reduces, combines or (4) combine its consolidates any outstanding shares of Common Stock Shares into a smaller number of shares Common Shares; or
(iii) issues any Common Shares by way of Common Stocka stock dividend, (any of such events above, a “Share Reorganization”), the Conversion Price will be adjusted by multiplying the Conversion Price by a fraction, the numerator of which is the number of Common Shares outstanding on the record date or effective date of such Share Reorganization and the denominator of which is the total number of Common Shares outstanding immediately after such record date or effective date, including the number of Common Shares that would have been outstanding had the outstanding Funded Amount been ultimately converted into such Common Shares on such record date or effective date. Such adjustment will be made successively whenever any event referred to in effect immediately this Section 10.2(a) occurs;
(b) if and whenever at any time prior to such action shall be adjusted so that the holder Maturity Date there is a reclassification or change of any Security thereafter surrendered Common Shares, other than a subdivision or consolidation described in Section 10.2(a), or a consolidation, amalgamation, arrangement, binding share exchange, merger of the Company with or into any other Person or other entity or acquisition of the Borrower 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 Borrower and the Loan Parties as an entirety or substantially as an entirety to any other Person (other than a direct or indirect wholly-owned Subsidiary of the Borrower) or other entity or a liquidation, dissolution or winding-up of the Borrower (any such event, a “Capital Reorganization”) the Lender, upon any exercise of its conversion rights to acquire Common Shares after the effective date of the Capital Reorganization, shall be entitled to receive receive, and shall accept, upon such conversion, in lieu of the number of shares Common Shares to which the Lender was theretofore entitled upon such conversion, the aggregate number of shares, other securities or other property which the Lender would have been entitled to receive as a result of the Capital Reorganization if, on the effective date thereof, the Lender had been the registered holder of the number of Common Stock which he would have owned immediately Shares that the Lender was theretofore entitled to acquire upon such conversion. If mutually determined appropriate by the Lender and the Borrower, each acting reasonably, appropriate adjustments shall be made following any Capital Reorganization in the application of these provisions, with respect to the rights and interest thereafter of the Lender and the adjustments to the Conversion Price to the end that such action had such Securities been converted immediately prior thereto. Any adjustment provisions shall thereafter correspondingly be made applicable as nearly as may reasonably be possible in relation to any shares, other securities or other property thereafter deliverable upon the conversion of any Conversion Amount pursuant to this subsection Article 10;
(ac) shall become effective immediately after if, for as long as all or any portion of the Funded Amount remains outstanding up to the Maturity Date, the Borrower sets a record date in for the case issue of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights rights, options or warrants to all or substantially all holders of Common Stock Shares, entitling them (them, for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such the record date) , to subscribe for or purchase shares of Common Stock Shares (or securities convertible into or exchangeable for Common StockShares) at a price per share (or having a conversion or exchange price per share) of less than 90% of the Current Market Price (as determined pursuant to subsection (f) below) of the Common Stock Shares on such record date (the issuance of any such rights, options or warrants, a “Rights Offering”), then the Conversion Price will be adjusted effective immediately after the record date by multiplying the Conversion Price in effect on such record date by a fraction: (i) the numerator of which shall be the sum of (A) the total number of Common Shares outstanding as of the record date for the Rights Offering and (B) a number equal to the quotient obtained by dividing the aggregate price of the total number of additional Common Shares so offered for subscription or purchase (or the aggregate conversion or exchange price of the convertible or exchangeable securities so offered) by the Current Market Price of the Common Shares on such record date; and (ii) the denominator of which shall be the number of Common Shares which would be outstanding after giving effect to the Rights Offering (assuming the exercise of all of the rights, options or warrants under the Rights Offering and assuming the exchange or conversion into Common Shares of all securities issued upon exercise of such rights, options or warrants, if any), provided that, in no event shall the Conversion Price be less than $0.01. Such adjustment shall be made successively whenever such an issuance is made or a record date is fixed. To the extent that any such rights, options or warrants are not so issued or are not exercised prior to the expiration thereof, the Conversion Price shall will be readjusted to the Conversion Price which would then be in effect if the record date had not been fixed;
(d) if, for as long as all or any portion of the Funded Amount remains outstanding up to the Maturity Date, the Borrower issues or distributes to all or substantially all holders of Common Shares, (i) securities of any kind (including securities convertible or exchangeable into Common Shares or property or other assets of the Borrower), (ii) evidences of indebtedness, or (iii) cash or any other assets and, in any of those cases, the issuance or distribution does not constitute a Share Reorganization or a Rights Offering (any such events, a “Special Distribution”), then the Conversion Price will automatically be adjusted as of the record date for such issuance or distribution so that the same shall it will equal the price determined by multiplying the Conversion Price in effect immediately prior to on such record date by a fraction fraction: (i) the numerator of which the numerator shall will be the number of shares of Common Stock Shares outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then fair market value (as determined multiplied by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a Board Resolution) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common StockShares on the record date, less the fair market value of the Special Distribution; and (ii) the denominator of which will be the number of Common Shares outstanding on the record date multiplied by the Current Market Price of the Common Shares. Such adjustment shall become effective immediately after the be made successively whenever such a record date is fixed; and
(e) if, for as long as all or any portion of the determination Funded Amount remains outstanding up to the Maturity Date, the Borrower makes an issuer bid or tender or exchange (other than an odd lot offer or a normal course issuer bid, an “Issuer Bid”) to all or substantially all of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall Shares where the cash and the value of any other consideration included in such payment per Common Share exceeds the Current Market Price of the Common Shares on the date immediately preceding the commencement of the Issuer Bid, the Conversion Price will be consummated, if an Excess Payment is made adjusted to a price determined by multiplying the applicable Conversion Price in effect on the date of the completion of the Issuer Bid by a fraction: (i) the numerator of which will be the product of the number of Common Shares outstanding immediately prior to the completion of the Issuer Bid (without giving effect to any reduction in respect of such tender offer any tendered or other negotiated transaction exchanged shares) and the amount Current Market Price of such Excess Payment, together with the Common Shares on the date immediately preceding the commencement of the Issuer Bid; and (ii) the denominator of which will be the sum of (x) the fair market value of the aggregate amount consideration paid by the Borrower to holders of all Excess Payments plus Common Shares upon the completion of the Issuer Bid, and the product of (y) the aggregate amount difference between the number of all distributions Common Shares outstanding immediately prior to all holders the completion of the Issuer Bid (without giving effect to any reduction in respect of tendered or exchanged shares) and the number of Common Stock made in cash (including any distributions of cash out of current or retained earnings of Shares actually purchased by the Company), in each case made within Borrower pursuant to the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date")Issuer Bid, and as to which no adjustment pursuant to paragraph (cz) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing Shares on the date next succeeding immediately preceding the first public announcement commencement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determinationIssuer Bid.
Appears in 1 contract
Sources: Loan Agreement (High Tide Inc.)
Adjustment of Conversion Price. The Conversion Price of each series of Preferred Stock shall be subject to adjustment from time to time as follows:
(ai) In case the Company shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or (4) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive If the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately outstanding at any time after the record date hereof is increased by a stock dividend payable in shares of Common Stock or by a subdivision or split-up of shares of Common Stock, then, on the case date such payment is made or such change is effective, the Conversion Price for the Preferred Stock shall be appropriately decreased so that the number of shares of Common Stock issuable on conversion of any shares of the Preferred Stock shall be increased in proportion to such increase of outstanding shares.
(ii) If the number of shares of Common Stock outstanding at any time after the date hereof is decreased by a dividend or distribution and shall become effective immediately after combination of the outstanding shares of Common Stock, then, on the effective date of such combination, the Conversion Price for such series shall be appropriately increased so that the number of shares of Common Stock issuable on conversion of shares of the Preferred Stock shall be decreased in the case of a subdivision or combinationproportion to such decrease in outstanding shares.
(biii) In case the Company corporation shall issue rights declare a cash dividend upon its Common Stock payable otherwise than out of retained earnings or warrants shall distribute to substantially all holders of its Common Stock entitling them shares of its capital stock (other than Common Stock), stock or other securities of other persons, evidences of indebtedness issued by the corporation or other persons, assets (excluding cash dividends) or options or rights (excluding options to purchase and rights to subscribe for a period commencing no earlier than Common Stock or other securities of the corporation convertible into or exchangeable for Common Stock), then, in each such case, immediately following the record date fixed for the determination of the holders of Common Stock entitled to receive such rights dividend or warrants and expiring not more than 45 days after such record date) 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 (as determined pursuant to subsection (f) below) of the Common Stock on such record datedistribution, the Conversion Price for the Preferred Stock in effect thereafter shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price for the Preferred Stock in effect immediately prior to such record date by a fraction of which the numerator shall be an amount equal to the number remainder of shares of Common Stock outstanding on such record date, plus ( ) the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares one share of Common Stock outstanding on less (y) the amount of such record date plus the number dividend in respect of additional shares one share of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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 Resolutionconclusive) of the portion of the assets stock, securities, evidences or indebtedness, assets, options or rights so distributed or in respect of such subscription rights or warrants applicable to one share of Common Stock, as the case may be, and of which the denominator shall be such the Current Market Price of the one share of Common Stock. Such adjustment shall be made on the date such dividend or distribution is made, and shall become effective immediately after at the opening of business on the business day next following the record date for the determination of the holders of Common Stock stockholders entitled to receive such dividend or distribution. Notwithstanding .
(iv) In case, at any time after the foregoingdate hereof, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's any capital stock reorganization (other than those referred to in subsection (ba reorganization covered by Section 2(c) above) ), or any reclassification of the stock of the corporation ("Rights") to substantially all holders of Common Stock, the Company may, other than a change in lieu of making any adjustment pursuant to this Section 1407, make proper provision so that each holder par value or as a result of a Security who converts such Security (stock dividend or any portion thereof) after the record date for such distribution and prior to the expiration subdivision, split-up or redemption combination of the Rights shall be entitled to receive upon such conversionshares), in addition to the shares of Common Preferred Stock issuable upon shall, after such conversion (capital reorganization or reclassification, be convertible into 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 kind and number of shares of Common Stock equal to stock or other securities or property of the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights corporation to which a such 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 if immediately prior to such capital reorganization or reclassification he had converted his shares of Preferred Stock into Common Stock. The provisions of and applicable this Section 4(e)(iv) shall similarly apply to the Rightssuccessive reorganizations, reclassifications, consolidations, mergers, sales or other dispositions.
(dv) In case All calculations under this Section 4 shall be made to the Company shall, by dividend nearest cent or otherwise, at any time distribute to all holders of its Common Stock cash the nearest one hundredth (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part 1/100) of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offershare, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Datebe.
(fvi) The For the purpose of any computation pursuant to this Section 4(e), the "Current Market Price" per at any date of one share of Common Stock on any date Stock, shall be deemed to be the average of the Daily Market Prices for highest reported bid and the shorter of (i) 30 consecutive Business Days ending lowest reported offer prices on the last full Trading Day on preceding business day as furnished by the exchange National Quotation Bureau, Incorporated (or market equivalent recognized source of quotations); provided, however, that if the Common Stock is not traded in such manner that the quotations referred to in determining such Daily Market Prices prior to the time of determination or (iithis Section 4(e) are available for the period commencing on required hereunder, Current Market Price shall be determined in good faith by the date next succeeding the first public announcement Board of Directors of the issuance corporation, but if challenged by the holders of more than 50% of the outstanding Preferred Stock, then as determined by an independent appraiser selected by the Board of Directors of the corporation, the cost of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on appraisal to be borne by the exchange or market referred to in determining such Daily Market Prices prior to the time of determinationchallenging parties.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case If the Company shall (1i) pay a dividend or other distribution, in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares on any class of Common Capital Stock to holders of Common Stockthe Company, (3ii) subdivide its the outstanding shares of Common Stock into a greater number of shares of Common Stock by any means or (4iii) combine its the outstanding shares of Common Stock into a smaller number of shares of Common Stockby any means (including, without limitation, a reverse stock split), then in each such case the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of any Security Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he that such Holder would have owned immediately following or have been entitled to receive upon the happening of such action event had such Securities Note been converted immediately prior theretoto the relevant record date or, if there is no such record date, the effective date of such event. Any An adjustment made pursuant to this subsection (aSection 10.4(a) shall become effective immediately after the record date in for the case determination of a stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a such subdivision or combination, as the case may be.
(b) In case If the Company shall (i) issue rights or warrants to substantially all holders of Common Stock entitling them distribute (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price (as determined pursuant per share of such Capital Stock on the date of such issuance or distribution) Capital Stock generally to subsection (f) below) holders of the Common Stock or to holders of any class or series of Capital Stock which is convertible into or exchangeable or exercisable for Common Stock (excluding an issuance or distribution of Common Stock described in Section 10.4(a)) or (ii) issue or distribute generally to such holders rights, warrants, options or convertible or exchangeable securities entitling the holder thereof to subscribe for, purchase, convert into or exchange for Capital Stock at a price per share less than the Current Market Price per share of such Capital Stock on the date of issuance or distribution, then, in each such case, at the earliest of (A) the date the Company enters into a firm contract for such issuance or distribution, (B) the record datedate for the determination of stockholders entitled to receive any such Capital Stock or any such rights, warrants, options or convertible or exchangeable securities or (C) the date of actual issuance or distribution of any such Capital Stock or any such rights, warrants, options or convertible or exchangeable securities, 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 such record earliest date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.by:
Appears in 1 contract
Sources: Indenture (Hybridon Inc)
Adjustment of Conversion Price. The Conversion Price ------------------------------ shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or (4) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of any Security Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities Notes been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price current market price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Pricecurrent market price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. 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 stockholders entitled to receive such rights or warrants had not been fixed.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earningscash), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities or other assets (other than those Securities securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price current market price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the event that the Company shall issue distribute rights or warrants to subscribe for additional shares of the Company's capital stock Capital Stock (other than those the Common Stock referred to in subsection (b) above) ("Rights") pro rata to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 14075.06, make proper provision so that each holder of a Security Note who converts such Security Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of 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 (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 Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. 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 stockholders entitled to receive such rights or warrants had not been fixed.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this SectionCompany) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or paragraph (e) of this Section or this paragraph (d) has been made, exceeds 1510% of the product of the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by times the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be (x) the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less (y) the amount determined by dividing the aggregate amount of such cash and other consideration (including any Excess Payments) so distributed applicable in excess of the 10% referred to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided above by the number of shares of Common Stock outstanding on the Distribution Record Date) , and the denominator shall be such Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (specifically including any distributions of cash out of current or retained earnings of the Companyearnings), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 1510% of the product of the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by times the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be (x) the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less (y) the amount determined by dividing the aggregate amount of such Excess Payments and such cash distributions, if any, applicable in excess of the 10% amount referred to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided above by the number of shares of Common Stock outstanding on the Purchase Date) , and the denominator shall be such Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" current market price per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Trading Days ending on the last full Trading Day trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction Excess Payment through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
(g) In any case in which this Section 5.06 shall require that an adjustment be made immediately following a record date for an event, the Company may elect to defer, until such event, issuing to the holder of any Note converted after such record date the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion over and above the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence of the right to receive such shares.
Appears in 1 contract
Sources: Indenture (Charming Shoppes Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment adjusted from time to time by the Company as follows:
(a) In case the Company shall (1i) pay a dividend on its Common Stock in shares of Common Stock to holders of Common Stock, (2ii) make a distribution on its Common Stock in shares of Common Stock to holders of Common Stock, (3iii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock shares, or (4iv) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stockshares, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which he it would have owned immediately following such action had such Securities Security been converted immediately prior theretoto the happening of such event. Any An adjustment made pursuant to this subsection (a) shall become effective immediately on the opening of business after the record date date, in the case of a dividend or distribution distribution, and shall become effective immediately on the opening of business after the effective date date, in the case of a subdivision or combination.
(b) In case If the Company shall issue rights rights, options or warrants (other than pursuant to a stockholder rights plan) to all or substantially all holders of its Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into or exercisable or exchangeable for Common Stock) at a price per share (or having a conversion, exercise or exchange price per share, determined in accordance with the last sentence of this Section 14.06(b)) less than the Current Market Price (as determined pursuant to subsection (f) below) per share of the Common Stock on the record date with respect to such issuance (or if no such record datedate is fixed, the Business Day immediately prior to the date of announcement of such issuance), the Conversion Price then in effect shall be adjusted so that as to be equal to the same shall equal the price determined by multiplying product of (A) the Conversion Price in effect immediately prior to at the opening of business on the date after such record date by (or if no such record date is fixed, the applicable Business Day), and (B) a fraction fraction:
(1) the numerator of which the numerator shall be the sum of (x) the number of shares of Common Stock outstanding on the close of business on the record date (or, if no such record datedate is fixed, plus the date of announcement of such issuance), and (y) the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock which underlying the aggregate offering price of the offered shares of Common Stock rights options, or warrants so issued (or the aggregate conversion conversion, exercise or exchange price of the convertible such securities so offered) would purchase at such Current Market Price, and Price of the Common Stock; and
(2) the denominator of which the denominator shall be the sum of (x) the number of shares of Common Stock outstanding at the close of business on the record date with respect to such issuance (or, if no such record date plus is fixed, the date immediately prior to the date of announcement of such issuance), and (y) the total number of additional shares of Common Stock offered (underlying the rights, options or into which the convertible securities warrants so offered are convertible)issued. Such adjustments adjustment shall be made successively whenever any such rights, options or warrants are issued, and shall become effective immediately after on the day following the date of announcement of such record dateissuance. For purposes of this Section 14.06(b), in the case of any security which is convertible into, or exercisable or exchangeable for, Common Stock and to which a holder of Common Stock is entitled to subscribe pursuant to rights, options or warrants issued by the Company in accordance with this Section 14.06(b), the conversion, exercise or exchange price of such security shall be equal to the quotient of: (i) the sum of (A) the price for a unit of such security and (B) any additional consideration initially payable upon the conversion of such security into, or exercise or exchange of such security for, Common Stock; and (ii) the number of shares of Common Stock initially underlying such security.
(ci) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of any class of Capital Stock of the Company (other than Common Stock), evidences of indebtedness or other non-cash assets (including securities of any Person other than cash the Company but excluding (x) the portion of any dividends out or distributions paid in cash, (y) dividends or distributions referred to in subsection (a) of current this Section 14.06 or retained earnings(z) distributions made in connection with the liquidation, dissolution or winding-up of the Company), or shall distribute to all or substantially all holders of its Common Stock rights rights, options or warrants to subscribe for or purchase any of its securities (other than excluding those Securities rights, options and warrants referred to in subsection (b) aboveof this Section 14.06 and also excluding the distribution of rights to all holders of Common Stock pursuant to a Rights Plan or the separation of such rights to the extent set forth in subparagraph (ii) of this Section 14.06(c)), then then, in each such case case, the Conversion Price shall be adjusted so that as to be equal to the same shall equal product of (A) the price determined by multiplying the current Conversion Price in effect immediately prior to and (B) a fraction:
(1) the date of such distribution by a fraction numerator of which the numerator shall be the excess, if any, of (x) the Current Market Price (determined as provided in subsection (f) below) per share of the Common Stock on such record date, over (y) the fair market value, on such record date mentioned below less the then 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) which shall be evidenced by an Officers’ Certificate delivered to the Trustee and the Conversion Agent), of the portion of the assets (other than cash) so distributed or of such subscription rights or warrants applicable to one share of Common StockStock (the fair market value of such portion to be determined by dividing the fair market value of all such assets so distributed, and by the number of shares of Common Stock outstanding on the record date); and
(2) the denominator of which the denominator shall be such Current Market Price of the Common Stockon such record date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of the holders of Common Stock shareholders entitled to receive such distribution. Notwithstanding .
(ii) If the foregoingCompany has in effect a preferred shares rights plan (“Rights Plan”), upon conversion of the Securities into Common Stock, to the extent that the Rights Plan is still in effect upon such conversion, the Holders will receive, in case addition to the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company mayrights described therein (whether or not the rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in lieu the Rights Plan. If the Rights Plan provides that upon separation of making rights under such plan from the Company’s Common Stock that the Holders would not be entitled to receive any adjustment pursuant to such rights in respect of the Common Stock issuable upon conversion of the Securities, the Conversion Price will be adjusted as provided in this Section 140714.06(c) (with such separation deemed to be the distribution of such rights), make proper provision so that each holder subject to readjustment in the event of a Security who converts such Security (or any portion thereof) after the record date for such distribution and prior to the expiration expiration, termination or redemption of the rights. Any distribution of rights or warrants pursuant to a Rights shall be entitled Plan that would allow a Holder to receive upon such conversion, in addition to the shares of Common Stock, the rights described therein (whether or not the rights have separated from the 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 conversion), shall not constitute a distribution of rights, options or warrants pursuant to this Article XIV.
(iii) Rights, options 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, options or warrants, until the occurrence of a specified event or events (“each, a Trigger Event”): (A) are deemed to be transferred with such conversion in accordance with the terms and provisions shares of and applicable to the RightsCommon Stock; (B) are not exercisable; and (iiC) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 14.06 (and no adjustment to the Conversion Price under this Section 14.06 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options 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 14.06(c). If, upon the occurrence of certain events, any such conversion occurs after rights, options or warrants (including any such existing rights, options or warrants distributed prior to the Distribution Original Issue Date) 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 the 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 14.06 was made, in the case of any such rights, options or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the same number of Rights Conversion Price shall be readjusted upon such final redemption or repurchase to which 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 the number of shares or holders of Common Stock into which the principal amount with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the 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 date of and applicable to the Rightssuch redemption or repurchase.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including Subsidiaries shall purchase any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the ’s Common Stock on the Distribution Record Date less the amount by means of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Datea tender offer, such reduction to become then, effective immediately prior to the opening of business on the day following after the Distribution Record last date (the “Expiration Date.
(e”) In case a tender offer or other negotiated transaction on which tenders could have been made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of pursuant to such tender offer or other negotiated transaction (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 as to equal the product of (A) the Conversion Price in effect immediately prior to the close of business on the Expiration Date, and (B) a fraction of which:
(1) the amount of such Excess Payment, together with numerator shall be the sum product of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares Purchased Shares, but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph Expiration Time and (ey) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock (as determined in accordance with Section 14.06(e)); and
(2) the denominator shall be the sum of (i) the aggregate consideration (determined as set forth below) payable to stockholders of the Company based on the Purchase Date less acceptance (up to any maximum specified in the amount 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 Excess Payments maximum, being referred to as the “Purchased Shares”) and such cash distributions, if any, applicable to one share (ii) the product of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by x) the number of shares of Common Stock outstanding on (less any Purchased Shares and excluding any shares held in the Purchase Datetreasury of the Company) immediately prior to the Expiration Time and (y) the denominator shall be such Current Market Price per share of Common Stock (as determined in accordance with Section 14.06(f)). For purposes of this Section 14.06(d), the aggregate consideration in any such tender offer shall equal the sum of the aggregate amount of cash consideration and the aggregate fair market value (as provided in paragraph (fdetermined by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers’ Certificate delivered to the Trustee and the Conversion Agent) of any other consideration payable in such tender offer. In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of shares actually purchased. If the application of this SectionSection 14.06(d) to any tender offer would result in an increase in the Conversion Price, no adjustment shall be made for such tender offer under this Section 14.06(d). For purposes of this Section 14.06(d), the Common Stock on term “tender offer” shall mean and include both tender offers and exchange offers, all references to “purchases” of shares in tender offers (and all similar references) shall mean and include both the Purchase Datepurchase of shares in tender offers and the acquisition of shares pursuant to exchange offers, such reduction and all references to become effective immediately prior to the opening of business on the day following the Purchase Date“tendered shares” (and all similar references) shall mean and include shares tendered in both tender offers and exchange offers.
(fe) The "For the purpose of any computation under Sections 14.06(c) and 14.06(d), the current market price (the “Current Market Price" ”) per share of Common Stock on any date shall be deemed to be the average of the Daily Market daily Closing Prices for the shorter ten consecutive Trading Days commencing 11 Trading Days before the record date with respect to distributions, issuances or other events requiring such computation under Section 14.06. For purposes of (i) 30 any computation under Section 14.06(d), the Current Market Price per share of Common Stock shall be deemed to be the arithmetic average of the daily Closing Prices for the ten consecutive Business Trading Days ending commencing on the last full Trading Day on next succeeding the exchange Expiration Date.
(f) For the purpose of this Section 14.06, “record date” shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of stockholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, contract or otherwise).
(g) In any case in which this Section 14.06 shall require that an adjustment be made to the Conversion Price, in lieu of the foregoing adjustment, the Company may, at its option, distribute, concurrently with the distribution to the holders of the outstanding Common Stock, shares of Common Stock, rights, options, warrants, any shares of Capital Stock of the Company (other than Common Stock), evidences of indebtedness or other non-cash assets (or the fair market referred value, as reasonably determined by the Board of Directors of the Company, of the foregoing in cash) that such Holder of Securities would have been entitled to in determining receive, as applicable, had such Daily Market Prices Security been converted immediately prior to the time record date relating to the event that would have caused such adjustment (without regard to the Conversion Limitation).
(h) In any case in which this Section 14.06 shall require that an adjustment be made following a record date, an announcement date, or an Expiration Date, established for purposes of determination this Section 14.06, the Company may elect to defer (but only until five Business Days following the filing by the Company with the Trustee and the Conversion Agent of the certificate described in Section 14.09) issuing to the Holder of any Security converted after such record date or (ii) announcement date or Expiration Date, the period commencing shares of Common Stock and other Capital Stock of the Company issuable upon such conversion over and above the shares of Common Stock and other capital stock of the Company issuable upon such conversion only on the date next succeeding basis of the first public announcement Conversion Rate prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence prepared by the Company of the right to receive such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determinationshares.
Appears in 1 contract
Sources: Indenture (Vector Group LTD)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case Upon the completion of any offering by the Company shall (1) pay a dividend in of shares of Common Stock or other securities completed while this Note remains outstanding, at a purchase price or conversion price that is less than the Conversion Price (each such offering, a "Subsequent Offering"), the Conversion Price shall be subject to holders adjustment whereby such adjusted Conversion Price shall be equal to the lesser of Common Stock, (2i) make a distribution in shares the price per share of Common Stock or conversion price of securities that is the subject of such Subsequent Offering, or (ii) such other amount as may be agreed to holders in writing between the Company and Purchaser (each, a "Subsequent Offering Conversion Price"). Upon completion of Common Stockany Subsequent Offering, Purchaser may elect to convert such outstanding principal amount of the Note (3including any Registration Delay Payments which Purchaser elects to add to the principal amount thereof) subdivide its outstanding shares at the applicable Subsequent Offering Conversion Price up to an amount of Common Stock not to exceed the limitations on beneficial ownership set forth in Section 2.10 below. Notwithstanding the foregoing, Purchaser shall be entitled to convert the principal amount of this Note (including any Registration Delay Payments which Purchaser elects to add to the principal amount hereof) into a greater Common Stock at the Subsequent Offering Conversion Price on one occasion per Subsequent Offering, and if Purchaser converts less than the entire principal amount of this Note (including any Registration Delay Payments which Purchaser elects to add to the principal amount hereof) at the Subsequent Offering Price, than any principal balance of this Note not so converted shall thereafter be convertible at the Conversion Price, subject to adjustment as hereafter provided in this Section 2.5.
(b) If the number of shares of Common Stock or (4) combine its outstanding is increased by a stock dividend payable in shares of Common Stock into or by a smaller number subdivision or split of shares of Common Stock, then the Conversion Price in effect immediately prior to such action stock dividend, subdivision or split shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive proportionately decreased and the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) convertible hereunder shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combinationbe proportionately increased.
(bc) In case If the Company shall issue rights or warrants to substantially all holders number of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into outstanding is decreased by a combination of the outstanding shares of Common Stock) at a price per share less than the Current Market Price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying then the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator combination shall be proportionately increased and the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator hereunder shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record dateproportionately decreased.
(cd) In case If the Company shall declare a cash dividend upon its Common Stock payable otherwise than out of earnings or earned surplus or shall distribute to all holders of the Common Stock shares of any class of Capital Stock of the Company its capital stock other than Common Stock, stock or other securities of other persons, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made issued by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummatedother persons, if an Excess Payment is made in respect of such tender offer or other negotiated transaction assets (excluding cash dividends and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (cdistributions) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.options
Appears in 1 contract
Sources: Convertible Term Note (Lifestream Technologies Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall event the Corporation (1i) pay a declares any dividend on the Common Stock in shares of Common Stock to holders of Common Stockits capital stock, (2ii) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its subdivides the outstanding shares of the Common Stock into a greater larger number of shares of Common Stock or shares, (4iii) combine its combines the outstanding shares of the Common Stock into a smaller number of shares, or (iv) issues by reclassification of the Common Stock any shares of Common Stockits capital stock, then the Conversion Price in effect immediately prior to on the record date for such action dividend or on the effective date of such subdivision, combination or reclassification shall be proportionately adjusted so that the record holder of any Security thereafter surrendered for conversion shares of Series A Preferred converted after such date shall be entitled to receive the number kind and amount of shares which such holder would have owned or have been entitled to receive had such shares of Series A Preferred been converted immediately prior to such date. Such adjustment shall be made successively whenever any event listed above shall occur. If, as a result of an adjustment made hereunder, the holder of any shares of Series A Preferred shall become entitled to receive shares of two or more classes of capital stock or shares of Common Stock which he would have owned immediately following and other capital stock of the Corporation, the Board shall determine the allocation of the adjusted Conversion Price between shares of such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case classes of a dividend capital stock or distribution shares of Common Stock and shall become effective immediately after the effective date in the case of a subdivision or combinationother capital stock.
(b) In case the Company shall issue rights or warrants to substantially all holders After each adjustment of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that pursuant to this Section 6, the same shall equal Corporation will promptly prepare a certificate signed by the price determined by multiplying Chief Financial Officer of the Corporation setting forth the Conversion Price in effect immediately prior to such record date by as so adjusted, and a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price brief statement of the offered shares facts accounting for such adjustment. The Company will promptly cause a brief summary thereof to be sent by ordinary first class mail to each record holder of Common Stock (or Series A Preferred at such holder's last address as it shall appear on the aggregate conversion price registry books of the convertible securities so offered) would purchase at Corporation or its transfer agent, unless the Corporation reasonably believes a holder of Series A Preferred has actual notice of the adjusted Conversion Price and the facts accounting for such Current Market Priceadjustment. No failure to mail such notice nor any defect therein or in the mailing thereof shall affect the validity thereof except to the extent a holder of Series A Preferred shall have suffered actual damages as a result thereof. The affidavit of the Secretary or an Assistant Secretary of the Corporation that such notice has been mailed shall, and in the absence of which fraud, be prima facie evidence of the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record datefacts stated therein.
(c) In case As used in this Section 6, the Company term "Common Stock" shall distribute to all holders of mean and include the Corporation's Common Stock shares authorized on the Original Issue Date and shall also include any capital stock of any class of Capital Stock the Corporation thereafter authorized which shall not be limited to a fixed sum or percentage in respect of the Company other than Common Stockrights of the holders thereof to participate in dividends and in the distribution of assets upon the voluntary liquidation, evidences dissolution or winding up of indebtedness or other assets (other than cash dividends out of current or retained earnings)the Corporation; provided, or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above)however, then in each such case the Conversion Price shall be adjusted so that the same shares issuable upon conversion of the Series A Preferred shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date include only shares of such distribution by a fraction class designated in the Corporation's Certificate of which the numerator shall be the Current Market Price (determined Incorporation as provided in subsection (f) below) of the Common Stock on the record date mentioned below less Original Issue Date or, in the then fair market value (as determined by the Board case of Directors, whose determination shall be conclusive evidence of such fair market value and described in a Board Resolution) any reclassification of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those character referred to in subsection (b) above) ("Rights") to substantially all holders of Common StockSection 6(a), the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 so reclassified 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 (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 Rightschanged.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
Appears in 1 contract
Sources: Stock Subscription and Stockholders' Agreement (Educational Video Conferencing Inc)
Adjustment of Conversion Price. The conversion price as stated in paragraph 8 of the Securities (the "Conversion Price Price") shall be subject to adjustment adjusted from time to time by the Company as follows:
(a) In case the Company shall (1i) pay a dividend in shares of Common Stock to all holders of Common Stock, (2ii) make a distribution in shares of Common Stock to all holders of Common Stock, (3iii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock shares, or (4iv) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stockshares, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which he it would have owned immediately following such action had such Securities Security been converted immediately prior theretoto the happening of such event. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend in shares or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants described below and expiring not more than 45 60 days after such record date) 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 current market price per share of Common Stock (as determined pursuant to in accordance with subsection (f) belowe) of this Section 4.6) at the Common Stock on record date for the determination of shareholders entitled to receive such record daterights or warrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered total number of shares of Common Stock so offered (or the aggregate conversion price Conversion Price of the convertible securities so offered) would purchase at such Current Market Pricecurrent market price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued).
(c) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of any class of Capital Stock capital stock of the Company (other than Common Stock), evidences of indebtedness or other non-cash assets (including securities of any company other than cash dividends out of current or retained earningsthe Company), or shall distribute to all or substantially all holders of its Common Stock rights or warrants to subscribe for or purchase any of its securities (other than excluding those Securities referred to in subsection (b) aboveof this Section 4.6), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided defined in subsection (fe) belowof this Section 4.6) of the Common Stock on the record date mentioned below less the then fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a Board Resolutionvalue) of the portion of the capital stock, evidences of indebtedness or other non-cash assets so distributed or of such subscription rights or warrants applicable to one share of Common StockStock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator shall be such Current Market Price the current market price per share (as defined in subsection (e) of this Section 4.6) of the Common StockStock on such record date. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock shareholders entitled to receive such distribution. Notwithstanding the foregoing, in case the event that the Company shall issue distribute rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) aboveof this Section 4.6) ("Rights") pro rata to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 14074.6, 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; 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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute (a "Triggering Distribution") to all or substantially all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other all cash distributions to all or substantially all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case stock made within the 12 months preceding the date fixed for determining of payment of the stockholders entitled to such distribution (the "Triggering Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs this Section 4.6 has been made, exceeds % of the product of the current market price per share of Common Stock (c) or as determined in accordance with subsection (e) of this Section or this paragraph (d4.6) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Business Day (the "Determination Date") immediately preceding the day on which such Triggering Distribution Record Date is declared by the Company multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date such date (excluding shares held in the treasury Treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) Determination Date by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock (as determined in accordance with subsection (e) of this Section 4.6) on the Distribution Record Determination Date less the amount of cash (plus the fair market value of such cash and other consideration (including any Excess Paymentsconsideration) so distributed within such 12 months (including, without limitation, the Triggering Distribution) applicable to one share of Common Stock (equal to determined on the aggregate amount basis of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Determination Date) and the denominator shall be such Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock (as determined in accordance with subsection (e) of this Section 4.6) on the Distribution Record Determination Date, such reduction to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution Record Dateis paid.
(e) In case a tender offer or other negotiated transaction made by For the Company or purpose of any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of computation under subsections (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Companyb), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph and (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date4.6, the Conversion Price shall be reduced so that the same shall equal the current market price determined by multiplying such 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 (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices daily closing prices for the shorter of (i) 30 consecutive Business Trading Days ending on commencing 45 Trading Days before (1) the last full Trading Day on the exchange or market referred Determination Date with respect to in determining such Daily Market Prices prior to the time distributions under subsection (d) of determination this Section 4.6 or (ii) the period commencing on the record date next succeeding the first public announcement with respect to distributions, issuances or other events requiring such computation under subsection (b) or (c) of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determinationthis Section 4.
Appears in 1 contract
Sources: Indenture (Commonwealth Telephone Enterprises Inc /New/)
Adjustment of Conversion Price. (a) The Conversion Price in effect at any date shall be subject to adjustment from time to time as follows:provided in this Section 4.3.
(ab) In case If the Company shall Corporation at any time after the date hereof subdivides (1by any stock split, stock dividend, recapitalization or otherwise) pay a dividend in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock Shares into a greater number of shares of Common Stock or (4) combine its outstanding shares of Common Stock into a smaller number of shares of Common StockShares, the any Conversion Price in effect immediately prior to such action subdivision will be proportionately reduced. If the Corporation at any time after the date hereof consolidates (by combination, reverse stock split or otherwise) its outstanding Common Shares into a smaller number of Common Shares, any Conversion Price in effect immediately prior to such consolidation will be proportionately increased. Any adjustment under this sub-paragraph 4.3(b) shall be adjusted so that become effective at the holder close of business on the date the subdivision or consolidation becomes effective.
(c) If at any Security thereafter surrendered for conversion shall time after the date hereof there occurs:
(i) a reclassification or redesignation of the Common Shares, any change of the Common Shares into other shares or securities or any other capital reorganization involving the Common Shares other than transactions covered by sub-paragraph 4.3(b);
(ii) an amalgamation or merger of the Corporation with or into any other body corporate, or plan of arrangement involving the Corporation, which results in a reclassification or redesignation of the Common Shares or a change or exchange of the Common Shares into other shares or securities; or
(iii) the transfer of the undertaking or assets of the Corporation as an entirety or substantially as an entirety to another corporation or entity; (any of such events being herein called a “Capital Reorganization”), after the effective date of the Capital Reorganization:
(iv) the Lender will be entitled to receive upon a Conversion, in lieu of the number of Common Shares to which the Lender was theretofore entitled upon the Conversion, the kind and aggregate number of shares of Common Stock and other securities or property resulting from the Capital Reorganization which he the Lender would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant entitled to this subsection (a) shall become effective immediately after receive as a result of the record date in the case of a dividend or distribution and shall become effective immediately after Capital Reorganization if, on the effective date in thereof, the case Lender had been the registered holder of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to substantially all holders number of Common Stock entitling them (for a period commencing no earlier than Shares to which the record date for the determination of holders of Common Stock Lender was theretofore entitled to receive such rights or warrants and expiring not more than 45 days after such record dateupon the Conversion; and
(v) 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 (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall shall, on the effective date of the Capital Reorganization, be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date Capital Reorganization by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute Shares purchasable pursuant to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common StockCapital Reorganization, and of which dividing the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 product thereof by the number of Conversion Shares is entitled at successor securities determined in Section (iv) above. If necessary, as a result of any Capital Reorganization, appropriate adjustments will be made in the time application of such conversion in accordance with the terms and provisions of and applicable the Agreement with respect to the Rights; rights and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder interest thereafter of the number of shares of Common Stock into which Lender to the principal amount end that the provisions of the Security so converted was convertible immediately prior Agreement will thereafter correspondingly be made applicable as nearly as may reasonably be possible in relation to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rightsany shares or other securities or property thereafter deliverable upon a Conversion.
(d) In case If any question arises with respect to the Company shalladjustments provided in this Section 4.3, such question shall be conclusively determined by dividend or otherwise, a firm of chartered accountants (who may be the Corporation's auditors) appointed by the Corporation at any time distribute its sole discretion. Such chartered accountants shall be given access to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings necessary records of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") Corporation and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price their determination shall be reduced so that binding upon the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) Corporation and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record DateLender.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company NTL Incorporated shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or (4) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of any Security Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities Notes been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company NTL Incorporated shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company NTL Incorporated shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company stock other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of DirectorsDirectors of NTL Incorporated, whose determination shall be conclusive evidence of such fair market value and described in a Board ResolutionResolution of NTL Incorporated) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company event that NTL Incorporated shall issue distribute rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("RightsRIGHTS") pro rata to substantially all holders of Common Stock, the Company NTL Incorporated may, in lieu of making any adjustment pursuant to this Section 14075.06, make proper provision so that each holder Holder of a Security Note who converts such Security Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion (the "Conversion SharesCONVERSION SHARES"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution DateDISTRIBUTION DATE"), the same number of Rights to which a holder of a number of shares of Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Common Stock into which the principal amount of the Security Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case the Company NTL Incorporated shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company NTL Incorporated but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this SectionSection 5.06) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record DateDISTRIBUTION RECORD DATE") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section 5.06 or this paragraph (d) has been made, exceeds 1510% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this SectionSection 5.06) of the Common Stock on the Distribution Record Date multiplied by times the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the CompanyNTL Incorporated), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this SectionSection 5.06) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share (based on the pro rata portion of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) ), divided by the number of shares of Common Stock outstanding on the Distribution Record Date) of Common Stock and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this SectionSection 5.06) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company NTL Incorporated or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (specifically including any distributions of cash out of current or retained earnings of the Companyearnings), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase DatePURCHASE DATE"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section 5.06 or this paragraph (e) has been made, exceeds 1510% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this SectionSection 5.06) of the Common Stock on the Purchase Date multiplied by times the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the CompanyNTL Incorporated) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this SectionSection 5.06) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share (based on the pro rata portion of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions distributions, divided by the number of shares of Common Stock outstanding on the Purchase Date) of Common Stock and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this SectionSection 5.06) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" current market price per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of of: (i) 30 consecutive Business Days ending on the last full Trading Day trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determinationdetermination (the "CURRENT MARKET PRICE").
(g) In any case in which this Section 5.06 shall require that an adjustment be made immediately following a record date, NTL Incorporated may elect to defer (but only until five Business Days following the filing by NTL Incorporated with the Trustee of the certificate described in Section 5.10 hereof) issuing to the Holder of any Note converted after such record date the shares of Common Stock and other Capital Stock of NTL Incorporated issuable upon such conversion over and above the shares of Common Stock and other Capital Stock of NTL Incorporated 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, NTL Incorporated shall issue or cause its transfer agents to issue due bills or other appropriate evidence of the right to receive such shares.
Appears in 1 contract
Sources: Indenture (NTL Communications Corp)
Adjustment of Conversion Price. (1) The Conversion Price shall will be subject to adjustment from time to time in the events and in the manner provided as follows.
(2) If and whenever at any time after the date hereof and prior to the Time of Expiry the Corporation:
(ai) In case issues Subordinate Voting Shares or securities exchangeable for or convertible into Subordinate Voting Shares to all or substantially all the Company shall holders of Subordinate Voting Shares as a stock dividend or other distribution (1) pay a dividend in shares other than an issue of Common Stock Subordinate Voting Shares to holders of Common Stock, Subordinate Voting Shares pursuant to a right granted to such holders to receive such Subordinate Voting Shares in lieu of Dividends Paid in the Ordinary Course and other than an issue of Subordinate Voting Shares on account of the exercise of options granted from time to time under the Corporation's employee and director stock option plan);
(2ii) make makes a distribution to all or substantially all of the holders of Subordinate Voting Shares payable in shares Subordinate Voting Shares or securities exchangeable for or convertible into Subordinate Voting Shares (other than an issue of Common Stock Subordinate Voting Shares to holders of Common Stock, Subordinate Voting Shares pursuant to a right granted to such holders to receive such Subordinate Voting Shares in lieu of Dividends Paid in the Ordinary Course and other than an issue of Subordinate Voting Shares on account of the exercise of options granted from time to time under the Corporation's employee and director stock option plan);
(3iii) subdivide subdivides its outstanding shares of Common Stock Subordinate Voting Shares into a greater number of shares of Common Stock or Subordinate Voting Shares; or
(4iv) combine consolidates its outstanding shares of Common Stock Subordinate Voting Shares into a smaller number of shares Subordinate Voting Shares, (any of Common Stocksuch events in subsections (i), (ii), (iii) and (iv) being called a "Subordinate Voting Share Reorganization"), then the Conversion Price then in effect immediately prior to such action shall will be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination happening of a Subordinate Voting Share Reorganization, as the case may be, at which the holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe Subordinate Voting Shares are determined for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price (as determined pursuant to subsection (f) below) purpose of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined Subordinate Voting Share Reorganization by multiplying the Conversion Price in effect immediately prior to such effective date or record date by a fraction fraction, the numerator of which the numerator shall will be the number of shares of Common Stock Subordinate Voting Shares outstanding on such effective date or record date, plus date before giving effect to such Subordinate Voting Share Reorganization and the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and denominator of which the denominator shall will be the number of shares Subordinate Voting Shares outstanding immediately after giving effect to such Subordinate Voting Share Reorganization (including, in the case where securities exchangeable for or convertible into Subordinate Voting Shares are distributed, the number of Common Stock Subordinate Voting Shares that would have been outstanding had all such securities been exchanged for or converted into Subordinate Voting Shares on such effective date or record date).
(3) If and whenever at any time after the date hereof and prior to the Time of Expiry the Corporation fixes a record date for the issue of rights, options or warrants to all or substantially all the holders of Subordinate Voting Shares (not including rights, options or warrants issued under the Corporation's employee and director stock option plan) under which such holders are entitled, during a period expiring not more than 45 days after the date of such issue (the "Rights Period"), to subscribe for or purchase Subordinate Voting Shares or securities exchangeable for or convertible into Subordinate Voting Shares at a price per share to the holder (or at an exchange or conversion price per share during the Rights Period to the holder in the case of securities exchangeable for or convertible into Subordinate Voting Shares) of less than 95% of the Current Market Price for the Subordinate Voting Shares on such record date plus (any of such events being called a "Rights Offering"), then the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become Conversion Price will be adjusted effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock end of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted Rights Period so that the same it shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date end of such distribution the Rights Period by a fraction fraction:
(a) the numerator of which the numerator shall will be the Current Market Price aggregate of:
(determined i) the number of Subordinate Voting Shares outstanding as provided in subsection (f) below) of the Common Stock on the record date mentioned below less for the then fair market value Rights Offering, and
(as ii) a number determined by dividing (A) either (i) the Board product obtained by multiplying the number of DirectorsSubordinate Voting Shares issued or subscribed for during the Rights Period upon the exercise of the rights, whose determination shall be conclusive evidence warrants or options under the Rights Offering by the price at which such Subordinate Voting Shares are offered, or, as the case may be, (ii) the product obtained by multiplying the exchange or conversion price of such fair market value and described in a Board Resolution) securities exchangeable for or convertible into Subordinate Voting Shares by the number of the portion of the assets so distributed Subordinate Voting Shares for or of such subscription rights or warrants applicable to one share of Common Stock, and of into which the denominator shall be such securities so offered pursuant to the Rights Offering could have been exchanged or converted during the Rights Period, by (B) the Current Market Price of the Common StockSubordinate Voting Shares as of the record date for the Rights Offering, and
(b) the denominator of which will be the number of Subordinate Voting Shares outstanding on such record date plus the total number of Subordinate Voting Shares which would be outstanding if all the exchangeable or convertible securities were exchanged for or converted into Subordinate Voting Shares during the Rights Period, after giving effect to the Rights Offering and including the number of Subordinate Voting Shares actually issued or subscribed for during the Rights Period upon exercise of the rights, warrants or options under the Rights Offering. Such adjustment shall become effective Any Debentureholder who has exercised the right to convert to Subordinate Voting Shares in accordance with this Article Four during the period beginning immediately after the record date for a Rights Offering and ending on the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 last day of the Rights shall be entitled to receive upon such conversionPeriod for the Rights Offering will, in addition to the shares of Common Stock issuable Subordinate Voting Shares to which that holder would otherwise be entitled upon such conversion (the "Conversion Shares")conversion, a be entitled to that number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Common Stock additional Subordinate Voting Shares equal to the number of Conversion Shares is entitled at result obtained when the time of such conversion in accordance with difference, if any, between the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of 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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness end of such Rights Offering and the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of adjusted for such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment Rights Offering pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date subsection is multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in Subordinate Voting Shares received upon the treasury conversion of the Company or Debentures held by such Holder during such period, and the resulting product is divided by the Conversion Price as adjusted for such Rights Offering pursuant to this subsection; provided that the provisions of section 4.6 will be applicable to any Subsidiary fractional interest in a Subordinate Voting Share to which such Holder might otherwise be entitled under the foregoing provisions of this subsection. Such additional Subordinate Voting Shares will be deemed to have been issued to-the Debentureholder immediately following the end of the Company) Rights Period and a certificate for such additional Subordinate Voting Shares will be delivered to such Holder within 15 Business Days following the end of the Rights Period. To the extent that any such rights, options or warrants are not so exercised on or before the Purchase Dateexpiry thereof, the Conversion Price shall will be reduced readjusted to the Conversion Price which would then be in effect based on the number of Subordinate Voting Shares (or the securities convertible into or exchangeable for Subordinate Voting Shares) actually delivered on the exercise of such rights, options or warrants.
(4) If and whenever at any time after the date hereof and prior to the Time of Expiry, the Corporation fixes a record date for the issue or the distribution to all or substantially all the holders of Subordinate Voting Shares of (i) securities of the Corporation, including rights, options or warrants to acquire securities of the Corporation or any of its property or assets and including evidences of indebtedness or (ii) any property or other assets, including evidences of indebtedness, and if such issuance or distribution does not constitute a Dividend Paid in the Ordinary Course, a Subordinate Voting Share Reorganization or a Rights Offering (any of such non-excluded events being called a "Special Distribution"), the Conversion Price will be adjusted effective immediately after such record date so that the same it shall equal the price determined by multiplying such the Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) on such record date by a fraction fraction:
(a) the numerator of which will be:
(A) the numerator shall be product obtained by multiplying the number of Subordinate Voting Shares outstanding on such record date by the Current Market Price per share of the Subordinate Voting Shares on such record date; less
(B) the fair market value, as determined by action by the Directors (whose determination will be conclusive), to the holders of Subordinate Voting Shares of such securities or property or other assets so issued or distributed in the Special Distribution; and
(b) the denominator of which will be the product obtained by multiplying the number of Subordinate Voting Shares outstanding on such record date by the Current Market Price of the Subordinate Voting Shares on such record date. To the extent that any Special Distribution is not so made, the Conversion Price will be readjusted effective immediately to the Conversion Price which would then be in effect based upon such securities or property or other assets as actually distributed.
(5) If and whenever at any time after the date hereof and prior to the Maturity Date, there is a reclassification of the Subordinate Voting Shares at any time outstanding or change of the Subordinate Voting Shares into other shares or into other securities or other capital reorganization (other than a Subordinate Voting Share Reorganization), or a consolidation, amalgamation or merger of the Corporation with or into any other corporation or other entity (other than a consolidation, amalgamation or merger which does not result in any reclassification of the outstanding Subordinate Voting Shares or a change of the Subordinate Voting Shares into other shares), or a transfer of the undertaking or assets of the Corporation as an entirety or substantially as an entirety to another corporation or other entity in which the holders of Subordinate Voting Shares are entitled to receive shares, other securities or other property (any of such events being called a "Capital Reorganization"), any Holder of Debentures who exercises the right to convert Debentures into Subordinate Voting Shares pursuant to Debentures then held after the effective date of such Capital Reorganization will be entitled to receive, and will accept for the same aggregate consideration in lieu of the number of Subordinate Voting 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 Subordinate Voting Shares to which such holder was previously entitled upon conversion. The Corporation 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. Appropriate adjustments will be made as a result of any such Capital Reorganization in the application of the provisions set forth in this Article Four with respect to the rights and interests thereafter of holders of Debentures to the end that the provisions set forth in this Article Four 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. Any such adjustment will be made by and set forth in an indenture supplemental hereto approved by action of the Directors and entered into pursuant to the provisions of Article Thirteen and will for all purposes be conclusively deemed to be an appropriate adjustment.
(6) If the purchase price provided for in paragraph any rights, options or warrants (fthe "Rights Offering Price") referred to in subsections 4.3(3) or (4) is decreased, the Conversion Price will forthwith be changed so as to decrease the Conversion Price to the Conversion Price that would have been obtained if the adjustment to the Conversion Price made under subsection 4.3(3) or (4), as the case may be, with respect to such rights, options or warrants had been made on the basis of the Rights Offering Price as so decreased, provided that the terms of this Section) of subsection will not apply to any decrease in the Common Stock on Rights Offering Price resulting from terms in any such rights, options or warrants designed to prevent dilution except to the Purchase Date less extent that the amount of such Excess Payments and such cash distributionsresulting decrease in the Conversion Price under this subsection would be greater than the decrease, if any, applicable in the Conversion Price to one share of Common Stock (equal to be made under the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) terms of this Section) section by virtue of the Common Stock on occurrence of the Purchase Date, event giving rise to such reduction to become effective immediately prior to decrease in the opening of business on the day following the Purchase DateRights Offering Price.
(f7) The "Current Market Price" per share In any case in which this section 4.3 shall require that an adjustment shall become effective intermediately after a record date for an event referred to herein, the Corporation may defer, until the occurrence of Common Stock on such event, issuing to the Holder of any Debenture converted after such record date shall be deemed to be and before the average occurrence of such event the additional Subordinate Voting Shares issuable upon such conversion by reason of the Daily Market Prices adjustment required by such event; provided, however, that the Corporation shall deliver to such Holder an appropriate instrument evidencing such Holder's right to receive such additional Subordinate Voting Shares upon the occurrence of such event and the right to receive any distributions made on such additional Subordinate Voting Shares declared in favour of holders of record of Subordinate Voting Shares on and after the Date of Conversion or such later date on which such Holder would, but for the shorter provisions of this subsection (i) 30 consecutive Business Days ending on a), have become the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time holder of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance record of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred additional Subordinate Voting Shares pursuant to in determining such Daily Market Prices prior to the time of determinationsubsection 4.2(2).
Appears in 1 contract
Sources: Trust Indenture (MDC Partners Inc)
Adjustment of Conversion Price. The conversion price or rate (herein called the "Conversion Price Price") for a series of Securities shall be as set forth in a Board Resolution, Officer's Certificate or executed supplemental indenture referred to in Section 301 by or pursuant to which the form and terms of the Securities of such series were established, and, except as otherwise provided therein, shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) or make a distribution in shares of Common Stock to holders of on the Common Stock, (32) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or shares, (43) combine its outstanding shares of Common Stock into a smaller number of shares, (4) issue by reclassification of its Common Stock any shares of Common Stockcapital stock of the Company or (5) redeem any Associated rights, the Conversion conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other capital stock of the Company which he would have owned immediately following such action had such Securities Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (e) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification. If as a result of an adjustment made pursuant to this subsection (a), the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of capital stock (including shares of Common Stock and other capital stock) of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed with the Trustee) shall determine the allocation of the adjusted Conversion Price between or among shares of such classes of capital stock or shares of Common Stock and other capital stock.
(b) In case the Company shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price current market price per share (as determined pursuant to subsection (fd) below) of the Common Stock on such the record datedate mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by multiplying multiplying:
(1) the Conversion Price in effect immediately prior to the date of issuance of such record date rights or warrants by a fraction fraction, of which which
(2) the numerator shall be (A) the number of shares of Common Stock outstanding on the date of issuance of such record daterights or warrants, immediately prior to such issuance, plus (B) the number of shares of Common Stock which the aggregate offering price of the total number of shares so offered shares of Common Stock (for subscription or the aggregate conversion price of the convertible securities so offered) purchase would purchase at such Current Market Pricecurrent market price (determined by multiplying such total number of shares by the exercise price of such rights or warrants and dividing the product so obtained by such current market price), and of which which
(3) the denominator shall be (A) the number of shares of Common Stock outstanding on the date of issuance of such record date rights or warrants, immediately prior to such issuance, plus (B) the number of additional shares of Common Stock offered (or into which the convertible securities are so offered are convertible)for subscription or purchase. Such adjustments adjustment shall become effective immediately immediately, except as provided in subsection (e) below, after the record date for the determination of holders entitled to receive such record daterights or warrants.
(c) In case the Company shall distribute to substantially all holders of Common Stock shares Stock, evidences of any class of Capital Stock of indebtedness, equity securities (including equity interests in the Company Company's Subsidiaries) other than Common Stock, evidences of indebtedness or other assets (other than cash dividends paid out of current or retained earningssurplus of the Company), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), ) then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in subsection (fd) below) of the Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of Directors, whose determination shall shall, if made in good faith, be conclusive evidence of such fair market value and described in a Board Resolutionvalue) of the portion of the assets so distributed determined or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price current market price per share of the Common Stock. Such adjustment shall become effective immediately immediately, except as provided in subsection (e) below, after the record date for the determination of the holders of Common Stock stockholders entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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.
(d) In case For the Company shall, by dividend or otherwise, at purpose of any time distribute to all holders of its Common Stock cash computation under subsections (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph b) and (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company)above, the Conversion Price shall be reduced so that the same shall equal the current market price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Last Sale Prices for the shorter 30 consecutive Trading Days commencing 45 Trading Days before the date in question.
(e) In any case in which this Section 1404 shall require that an adjustment be made immediately following a record date, the Company may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), in which case the Company shall, with respect to any Security converted after such record date and before such adjustment shall have become effective, (i) 30 consecutive defer paying any cash payment pursuant to Section 1403 or issuing to the Holder of such Security the number of shares of Common Stock and other capital stock of the Company issuable upon such conversion in excess of the number of shares of Common Stock and other capital stock of the Company issuable thereupon only on the basis of the Conversion Price prior to adjustment and (ii) not later than five Business Days ending after such adjustment shall have become effective, pay to such Holder the appropriate cash payment pursuant to Section 1403 and issue to such Holder the additional shares of Common Stock and other capital stock of the Company issuable on such conversion.
(f) No adjustment in the last full Trading Day on conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% of the Conversion Price; provided, that any adjustments which by reason of this subsection (f) are not required to be made shall be carried forward and taken into account in any subsequent adjustment and, provided further, that adjustment shall be required and made in accordance with the provisions of this Article Fourteen (other than this subsection (f) not later than such time as may be required in order to preserve the tax-free nature of a distribution to the holders of Securities or Common Stock. All calculations under this Article Fourteen shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(g) Whenever the Conversion Price is adjusted as herein provided, the Company shall promptly (i) file with the Trustee and each Conversion Agent an Officer's Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment, and (ii) mail or cause to be mailed a notice of such adjustment to each Holder of Securities in the manner provided in Section 106. Anything in this Section 1404 to the contrary notwithstanding, the Company shall be entitled to make such reductions in the Conversion Price, in addition to those required by this Section 1404, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights or warrants to purchase stock or securities, or distribution of other assets (other than cash dividends) hereafter made by the Company to its stockholders shall not be taxable. SECTION 1405. Continuation of Conversion Privilege in Case of Merger, Consolidation or Sale of Assets. If any of the following shall occur, namely: (a) any consolidation or merger of the Company as a result of which the holders of Common Stock shall be entitled to receive stock, other securities or other assets (including cash) with respect to or in exchange for Common Stock; or (b) sale, lease, exchange or market referred other disposition of all or substantially all of the property and assets of the Company as an entirety, then the Company, or such successor or purchasing corporation, as the case may be, shall, as a condition precedent to such consolidation, merger, sale, lease, exchange or other disposition, execute and deliver to the Trustee a supplemental indenture (which shall conform to the Trust Indenture Act of 1939 as in determining force at the date of the execution thereof) providing that the Holder of each convertible Security then Outstanding shall have the right to convert such Daily Market Prices Security into the kind and amount of shares of stock and other securities and property (including cash) receivable upon or in connection with such consolidation, merger, sale, lease, exchange or other disposition by a holder of the number of shares of Common Stock issuable upon conversion of such Security immediately prior to such consolidation, merger, sale, lease, exchange or other disposition. Such supplemental indenture shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article Fourteen. If, in the case of any such consolidation, merger, sale, lease, exchange or other disposition, the stock or other securities and property (including cash) receivable thereupon or in connection therewith by a holder of shares of Common Stock includes shares of stock or other securities and property (including cash) of a corporation other than the successor or purchasing corporation, as the case may be, in such consolidation, merger, sale, lease, exchange or other disposition, then such supplemental indenture shall also be executed by such other corporation and shall contain such additional provisions to protect the interests of the Holders of the Securities as the Board of Directors shall reasonably consider necessary by reason of the foregoing. The provisions of this Section 1405 shall similarly apply to successive consolidations, mergers, sales, leases, exchanges or other dispositions. Notice of the execution of each such supplemental indenture shall be mailed to each Holder of Securities in the manner provided in Section 106. Neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of any provisions contained in any such supplemental indenture relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Holders of Securities upon the conversion of their Securities after any such consolidation, merger, sale, lease, exchange or other disposition or to any adjustment to be made with respect thereto, but, subject to the provisions of Sections 601 and 603, may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officer's Certificate (which the Company shall be obligated to file with the Trustee prior to the time execution of determination or (iiany such supplemental indenture) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determinationwith respect thereto.
Appears in 1 contract
Sources: Indenture (Eog Resources Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment adjusted from time to time by the Company as follows:
(a) In the event the Company (i) fails for any reason to cause a registration statement covering all of the Conversion Shares into which all outstanding Debentures could be converted to be filed under the Act and to become effective, and to remain effective, by and as of the 180th day following the Closing Date, or (ii) fails thereafter to maintain such registration statement in effect with respect to all such Conversion Shares, in each case without same being subject to any stop order, or (iii) otherwise fails to perform its duties with respect to the registration of the Conversion Shares pursuant to the Registration Rights Agreement such that all or any portion of the Conversion Shares may not legally be offered or sold pursuant to an effective registration statement, then for each month, or portion thereof, between the 180th day following the Closing Date and the maturity of the Debentures that any such failure occurs or continues the Conversion Price, as theretofore adjusted, shall be reduced by $.0625 (as concomitantly adjusted to reflect prior adjustment to the Conversion Price other than adjustments pursuant to this paragraph (a)), provided that the aggregate reduction of the Conversion Price pursuant to this paragraph (a) shall not exceed $375 (as concomitantly adjusted to reflect prior adjustments to the Conversion Price other than adjustments pursuant to this paragraph (a)).
(b) In case the Company shall (1i) pay a dividend in shares of Common Stock to holders of Common Stock, (2ii) make a distribution in shares of Common Stock to holders of Common Stock, (3iii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock shares, or (4iv) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stockshares, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of any Security Debenture thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action (attributable to Conversion Shares) had such Securities Debenture been converted immediately prior theretoto the happening of such event. Any An adjustment made pursuant to this subsection paragraph (ab) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(bc) In case the Company shall issue 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 for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price current market price per share of Common Stock (as determined pursuant to subsection in accordance with paragraph (fe) below) at the record date for the determination of the Common Stock on stockholders entitled to receive such record daterights or warrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering subscription or purchase price for the total number of the offered shares of Common Stock offered by the rights or warrants so issued (or the aggregate conversion price of the convertible securities so offeredoffered by such rights or warrants) would purchase at such Current Market Pricecurrent market price, and of which the denominator shall be the number of shares of Common Stock outstanding outstanding, on such record date plus the number of additional shares of Common Stock offered by such rights or warrants (or into which the convertible securities so offered by such rights or warrants are convertible). Such adjustments adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been upon application of the foregoing adjustment substituting the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued) for the total number of shares of Common Stock offered (or the convertible securities offered).
(cd) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of any class of Capital Stock capital stock of the Company (other than Common Stock, ) or evidences of indebtedness its indebtedness, other securities or other assets (other than excluding cash dividends out or other cash distributions to the extent paid from retained earnings of current the Company with funds legally available for such dividends or retained earningsdistributions under the laws of the Company's state of incorporation), or shall distribute to all or substantially all holders of its Common Stock rights or warrants to subscribe for or purchase any of its securities (other than excluding those Securities referred to in subsection paragraph (bc) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided defined in subsection paragraph (fe) below) of the Common Stock on the record date mentioned below less the then fair market value on such record date (as determined in good faith by the Board of Directors, whose determination shall be conclusive evidence Directors of such fair market value and described in a Board Resolutionthe Company) of the portion of the capital stock or evidences of indebtedness, other securities or assets so distributed or of such subscription rights or warrants warrants, in each case as applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price the current market price per share (as defined in paragraph (e) below) of the Common StockStock on such record date. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock shareholders entitled to receive such distribution. Notwithstanding the foregoing, in case the event that the Company shall issue distribute rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection paragraph (bc) above) ("Rights") pro rata to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 7.11 make proper provision so that each holder of a Security Debenture who converts such Security Debenture (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of 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 (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 Debenture so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(de) In case For the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount purpose of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this computation under paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company)above, the Conversion Price shall be reduced so that the same shall equal the current market price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices daily closing prices for 20 consecutive trading days commencing 30 trading days before the shorter record date with respect to any distribution, issuance or other event requiring such computation. The closing price for each day shall be the last reported sales price or, in case no such reported sale takes place on such date, the average of (i) 30 consecutive Business Days ending the reported closing bid and asked prices in either case on the last full Trading Day principal national securities exchange on which the Common Stock is listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, the closing sales price of the Common Stock as quoted by NASDAQ, or in case no reported sale takes place, the average of the closing bid and asked prices as quoted by NASDAQ or any comparable system, or if the Common Stock is not quoted on NASDAQ or any comparable system, the closing sales price or, in case no reported sale takes place, the average of the closing bid and asked prices, as furnished by any two members of the National Association of Securities Dealers, Inc. selected from time to time by the Company for that purpose.
(f) In any case in which this Section 7.11 shall require that an adjustment be made immediately following a record date established for purposes of this Section 7.11, the Company may elect to defer (but only until five business days following the mailing by the Company of notice of an adjustment in accordance with Section 7.15 below) issuing to the holder of any Debenture converted after such record date the shares of Common Stock and other capital stock of the Company issuable upon such conversion over and above the shares of Common Stock and other capital stock of the Company issuable upon such conversion only on the exchange or market referred to in determining such Daily Market Prices basis of the Conversion Price prior to adjustment; and, in lieu of the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence of the right to receive such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determinationshares.
Appears in 1 contract
Adjustment of Conversion Price. The conversion price (herein called the "Conversion Price Price") shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) or make a distribution in shares of Common Stock to holders of Common Capital Stock, (32) subdivide its outstanding shares of Common Capital Stock into a greater number of shares of Common Stock or (43) combine its outstanding shares of Common Capital Stock into a smaller number of shares of Common Stockshares, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Capital Stock which he would have owned immediately following such action had such Securities Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (e) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. If after an adjustment a holder upon conversion of the Capital Stock may receive shares of two or more classes of Capital Stock of the Company, the Company shall determine the allocation of the adjusted Conversion Price between the classes of Capital Stock. After such allocation, the conversion privilege and Conversion Price of each class of Capital Stock shall thereafter be subject to adjustment on terms comparable to those set forth in this paragraph.
(b) In case the Company shall issue rights or warrants to substantially all holders of Common Capital Stock entitling them (for a period commencing no earlier not exceeding 45 days from the date of such issuance) to subscribe for or purchase shares of Capital Stock at a price per share less than the current market price per share (as determined pursuant to subsection (d) below) of the Capital Stock on the record date mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, in accordance with the following formula: N x P AP = -------------- CP x O + M where: AP = the adjusted Conversion Price. CP = the current Conversion Price. O = the number of shares of Capital Stock outstanding on the record date for the distribution. N = the number of additional shares of Capital Stock offered. P = the offering price per share of the additional shares. M = the current market price per share of Capital Stock on the record date. Such adjustment shall become effective immediately, except as provided in subsection (e) below, after the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record datewarrants.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness indebtedness, equity securities other than Capital Stock or other assets (other than cash dividends out of or other distributions to the extent paid from current or retained earningsearnings of the Company), or shall distribute to substantially all holders of Common Capital Stock rights or warrants to subscribe for to securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that in accordance with the same shall equal following formula: CP x M - F AP = ----------- M where: AP = the adjusted Conversion Price. CP = the current Conversion Price. M = the current market price determined by multiplying the Conversion Price in effect immediately prior to the date per share of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Capital Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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 Rightsbelow.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment adjusted from time to time by the Company as follows:
(a) In case the Company shall (1i) pay a dividend on its Common Stock in shares of Common Stock to holders of Common Stock, (2ii) make a distribution on its Common Stock in shares of Common Stock to holders of Common Stock, (3iii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock shares, or (4iv) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stockshares, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which he it would have owned immediately following such action had such Securities Security been converted immediately prior theretoto the happening of such event. Any An adjustment made pursuant to this subsection (a) shall become effective immediately on the opening of business after the record date date, in the case of a dividend or distribution distribution, and shall become effective immediately on the opening of business after the effective date date, in the case of a subdivision or combination.
(b) In case If the Company shall issue rights rights, options or warrants (other than pursuant to a stockholder rights plan) to all or substantially all holders of its Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into or exercisable or exchangeable for Common Stock) at a price per share (or having a conversion, exercise or exchange price per share, determined in accordance with the last sentence of this Section 14.06(b)) less than the Current Market Price (as determined pursuant to subsection (f) below) per share of the Common Stock on the record date with respect to such issuance (or if no such record datedate is fixed, the Business Day immediately prior to the date of announcement of such issuance), the Conversion Price then in effect shall be adjusted so that as to be equal to the same shall equal the price determined by multiplying product of (A) the Conversion Price in effect immediately prior to at the opening of business on the date after such record date by (or if no such record date is fixed, the applicable Business Day), and (B) a fraction fraction:
(1) the numerator of which the numerator shall be the sum of (x) the number of shares of Common Stock outstanding on the close of business on the record date (or, if no such record datedate is fixed, plus the date of announcement of such issuance), and (y) the number of shares which the aggregate subscription or purchase price for the total number of shares of Common Stock which underlying the aggregate offering price of the offered shares of Common Stock rights options, or warrants so issued (or the aggregate conversion conversion, exercise or exchange price of the convertible such securities so offered) would purchase at such Current Market Price, and Price of the Common Stock; and
(2) the denominator of which the denominator shall be the sum of (x) the number of shares of Common Stock outstanding at the close of business on the record date with respect to such issuance (or, if no such record date plus is fixed, the date immediately prior to the date of announcement of such issuance), and (y) the total number of additional shares of Common Stock offered (underlying the rights, options or into which the convertible securities warrants so offered are convertible)issued. Such adjustments adjustment shall be made successively whenever any such rights, options or warrants are issued, and shall become effective immediately after on the day following the date of announcement of such record dateissuance. For purposes of this Section 14.06(b), in the case of any security which is convertible into, or exercisable or exchangeable for, Common Stock and to which a holder of Common Stock is entitled to subscribe pursuant to rights, options or warrants issued by the Company in accordance with this Section 14.06(b), the conversion, exercise or exchange price of such security shall be equal to the quotient of: (i) the sum of (A) the price for a unit of such security and (B) any additional consideration initially payable upon the conversion of such security into, or exercise or exchange of such security for, Common Stock; and (ii) the number of shares of Common Stock initially underlying such security.
(ci) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of any class of Capital Stock of the Company (other than Common Stock), evidences of indebtedness or other non-cash assets (including securities of any Person other than cash the Company but excluding (x) the portion of any dividends out or distributions paid in cash, (y) dividends or distributions referred to in subsection (a) of current this Section 14.06 or retained earnings(z) distributions made in connection with the liquidation, dissolution or winding-up of the Company), or shall distribute to all or substantially all holders of its Common Stock rights rights, options or warrants to subscribe for or purchase any of its securities (other than excluding those Securities rights, options and warrants referred to in subsection (b) aboveof this Section 14.06 and also excluding the distribution of rights to all holders of Common Stock pursuant to a Rights Plan or the separation of such rights to the extent set forth in subparagraph (ii) of this Section 14.06(c)), then then, in each such case case, the Conversion Price shall be adjusted so that as to be equal to the same shall equal product of (A) the price determined by multiplying the current Conversion Price in effect immediately prior to and (B) a fraction:
(1) the date of such distribution by a fraction numerator of which the numerator shall be the excess, if any, of (x) the Current Market Price (determined as provided in subsection (f) below) per share of the Common Stock on such record date, over (y) the fair market value, on such record date mentioned below less the then 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) which shall be evidenced by an Officers’ Certificate delivered to the Trustee and the Conversion Agent), of the portion of the assets (other than cash) so distributed or of such subscription rights or warrants applicable to one share of Common StockStock (the fair market value of such portion to be determined by dividing the fair market value of all such assets so distributed, and by the number of shares of Common Stock outstanding on the record date); and
(2) the denominator of which the denominator shall be such Current Market Price of the Common Stockon such record date. Such adjustment shall be made successively whenever any such distribution is made and shall become effective immediately after the record date for the determination of the holders of Common Stock shareholders entitled to receive such distribution. Notwithstanding .
(ii) If the foregoingCompany has in effect a preferred shares rights plan (“Rights Plan”), upon conversion of the Securities into Common Stock, to the extent that the Rights Plan is still in effect upon such conversion, the Holders will receive, in case addition to the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company mayrights described therein (whether or not the rights have separated from the Common Stock at the time of conversion), subject to the limitations set forth in lieu the Rights Plan. If the Rights Plan provides that upon separation of making rights under such plan from the Company’s Common Stock that the Holders would not be entitled to receive any adjustment pursuant to such rights in respect of the Common Stock issuable upon conversion of the Securities, the Conversion Price will be adjusted as provided in this Section 140714.06(c) (with such separation deemed to be the distribution of such rights), make proper provision so that each holder subject to readjustment in the event of a Security who converts such Security (or any portion thereof) after the record date for such distribution and prior to the expiration expiration, termination or redemption of the rights. Any distribution of rights or warrants pursuant to a Rights shall be entitled Plan that would allow a Holder to receive upon such conversion, in addition to the shares of Common Stock, the rights described therein (whether or not the rights have separated from the 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 conversion), shall not constitute a distribution of rights, options or warrants pursuant to this Article XIV.
(iii) Rights, options 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, options or warrants, until the occurrence of a specified event or events (each, a “Trigger Event”): (A) are deemed to be transferred with such conversion in accordance with the terms and provisions shares of and applicable to the RightsCommon Stock; (B) are not exercisable; and (iiC) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 14.06 (and no adjustment to the Conversion Price under this Section 14.06 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options 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 14.06(c). If, upon the occurrence of certain events, any such conversion occurs after rights, options or warrants (including any such existing rights, options or warrants distributed prior to the Distribution Original Issue Date) 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 the 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 14.06 was made, in the case of any such rights, options or warrants which shall all have been redeemed or repurchased without exercise by any holders thereof, the same number of Rights Conversion Price shall be readjusted upon such final redemption or repurchase to which 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 the number of shares or holders of Common Stock into which the principal amount with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the 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 date of and applicable to the Rightssuch redemption or repurchase.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including Subsidiaries shall purchase any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the ’s Common Stock on the Distribution Record Date less the amount by means of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Datea tender offer, such reduction to become then, effective immediately prior to the opening of business on the day following after the Distribution Record last date (the “Expiration Date.
(e”) In case a tender offer or other negotiated transaction on which tenders could have been made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of pursuant to such tender offer or other negotiated transaction (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 as to equal the product of (A) the Conversion Price in effect immediately prior to the close of business on the Expiration Date, and (B) a fraction of which:
(1) the amount of such Excess Payment, together with numerator shall be the sum product of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares Purchased Shares, but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph Expiration Time and (ey) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock (as determined in accordance with Section 14.06(e)); and
(2) the denominator shall be the sum of (i) the aggregate consideration (determined as set forth below) payable to stockholders of the Company based on the Purchase Date less acceptance (up to any maximum specified in the amount 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 Excess Payments maximum, being referred to as the “Purchased Shares”) and such cash distributions, if any, applicable to one share (ii) the product of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by x) the number of shares of Common Stock outstanding on (less any Purchased Shares and excluding any shares held in the Purchase Datetreasury of the Company) immediately prior to the Expiration Time and (y) the denominator shall be such Current Market Price per share of Common Stock (as determined in accordance with Section 14.06(f)). For purposes of this Section 14.06(d), the aggregate consideration in any such tender offer shall equal the sum of the aggregate amount of cash consideration and the aggregate fair market value (as provided in paragraph (fdetermined by the Board of Directors, whose determination shall be conclusive evidence thereof and which shall be evidenced by an Officers’ Certificate delivered to the Trustee and the Conversion Agent) of any other consideration payable in such tender offer. In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would have been in effect based upon the number of shares actually purchased. If the application of this SectionSection 14.06(d) to any tender offer would result in an increase in the Conversion Price, no adjustment shall be made for such tender offer under this Section 14.06(d). For purposes of this Section 14.06(d), the Common Stock on term “tender offer” shall mean and include both tender offers and exchange offers, all references to “purchases” of shares in tender offers (and all similar references) shall mean and include both the Purchase Datepurchase of shares in tender offers and the acquisition of shares pursuant to exchange offers, such reduction and all references to become effective immediately prior to the opening of business on the day following the Purchase Date“tendered shares” (and all similar references) shall mean and include shares tendered in both tender offers and exchange offers.
(fe) The "For the purpose of any computation under Sections 14.06(c) and 14.06(d), the current market price (the “Current Market Price" ”) per share of Common Stock on any date shall be deemed to be the average of the Daily Market daily Closing Prices for the shorter ten consecutive Trading Days commencing 11 Trading Days before the record date with respect to distributions, issuances or other events requiring such computation under Section 14.06. For purposes of (i) 30 any computation under Section 14.06(d), the Current Market Price per share of Common Stock shall be deemed to be the arithmetic average of the daily Closing Prices for the ten consecutive Business Trading Days ending commencing on the last full Trading Day on next succeeding the exchange Expiration Date.
(f) For the purpose of this Section 14.06, “record date” shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of stockholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, contract or otherwise).
(g) In any case in which this Section 14.06 shall require that an adjustment be made to the Conversion Price, in lieu of the foregoing adjustment, the Company may, at its option, distribute, concurrently with the distribution to the holders of the outstanding Common Stock, shares of Common Stock, rights, options, warrants, any shares of Capital Stock of the Company (other than Common Stock), evidences of indebtedness or other non-cash assets (or the fair market referred value, as reasonably determined by the Board of Directors of the Company, of the foregoing in cash) that such Holder of Securities would have been entitled to in determining receive, as applicable, had such Daily Market Prices Security been converted immediately prior to the time record date relating to the event that would have caused such adjustment (without regard to the Conversion Limitation).
(h) In any case in which this Section 14.06 shall require that an adjustment be made following a record date, an announcement date, or an Expiration Date, established for purposes of determination this Section 14.06, the Company may elect to defer (but only until five Business Days following the filing by the Company with the Trustee and the Conversion Agent of the certificate described in Section 14.09) issuing to the Holder of any Security converted after such record date or (ii) announcement date or Expiration Date, the period commencing shares of Common Stock and other Capital Stock of the Company issuable upon such conversion over and above the shares of Common Stock and other capital stock of the Company issuable upon such conversion only on the date next succeeding basis of the first public announcement Conversion Rate prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence prepared by the Company of the right to receive such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determinationshares.
Appears in 1 contract
Sources: Indenture (Vector Group LTD)
Adjustment of Conversion Price. The "Conversion Price Price" for a Series of Securities shall be as set forth in a Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Section 2.1 by or pursuant to which the form and terms of the Securities of such Series were established, and shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend or make a distribution in shares of Class A Common Stock to holders of Class A Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Class A Common Stock into a greater number of shares of Class A Common Stock or Stock, (43) combine its outstanding shares of Class A Common Stock into a smaller number of shares of Class A Common StockStock or (4) issue by reclassification of its Class A Common Stock any shares of Capital Stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Class A Common Stock or other Capital Stock of the Company which he would have owned immediately following such action had such Securities Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (e) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification. If as a result of an adjustment made pursuant to this subsection (a), the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of Capital Stock (including shares of Class A Common Stock and other Capital Stock) of the Company, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed with the Trustee) shall determine the allocation of the adjusted Conversion Price between or among shares of such classes of Capital Stock or shares of Class A Common Stock and other Capital Stock.
(b) In case the Company shall issue rights or warrants to substantially all holders of Class A Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than exceeding 45 days after from the date of such record dateissuance) to subscribe for or purchase shares of Class A Common Stock (or securities Securities convertible into Class A Common Stock) Stock at a price per share less than the Current Market Price current market price per share (as determined pursuant to subsection (fd) below) of the Class A Common Stock on such the record datedate mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by multiplying multiplying:
(1) the Conversion Price in effect immediately prior to the date of issuance of such record date by rights or warrants by
(2) a fraction fraction, of which (i) the numerator shall be (A) the number of shares of Class A Common Stock outstanding on the date of issuance of such record daterights or warrants, immediately prior to such issuance, plus (B) the number of shares of Class A Common Stock which the aggregate offering price of the offered total number of shares of Class A Common Stock (or the aggregate conversion price of the convertible securities securities) so offered) offered for subscription or purchase would purchase at such Current Market Pricecurrent market price (determined by multiplying such total number of shares by the exercise price of such rights or warrants and dividing the product so obtained by such current market price), and of which (ii) the denominator shall be (A) the number of shares of Class A Common Stock outstanding on the date of issuance of such record date rights or warrants, immediately prior to such issuance, plus (B) the number of additional shares of Class A Common Stock offered (or into which the convertible securities are convertible) which are so offered are convertible)for subscription or purchase. Such adjustments adjustment shall become effective immediately immediately, except as provided in subsection (e) below, after the record date for the determination of holders entitled to receive such record daterights or warrants.
(c) In case the Company shall distribute to substantially all holders of Common Stock shares of any class of Capital Stock of the Company other than Class A Common Stock, evidences of indebtedness indebtedness, equity securities (including equity interests in the Company's Subsidiaries) other than common stock, or other assets (other than cash dividends paid out of current or retained earningssurplus of the Company), or shall distribute to substantially all holders of Class A Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), ) then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in n subsection (fd) below) of the Class A Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of Directors, whose determination shall shall, if made in good faith, be conclusive evidence of such fair market value and described in a Board Resolutionvalue) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Class A Common Stock, and of which the denominator shall be such Current Market Price current market price per share of the Class A Common Stock. Such adjustment shall become effective immediately immediately, except as provided in subsection (e) below, after the record date for the determination of the holders of Common Stock stockholders entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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.
(d) In case For the Company shall, by dividend or otherwise, at purpose of any time distribute to all holders of its Common Stock cash computation under subsections (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph b) and (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company)above, the Conversion Price shall be reduced so that the same shall equal the current market price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Class A Common Stock on any date shall be deemed to be the 73 average of the Daily Market Last Sale Prices for the shorter 30 consecutive Trading Days commencing 45 Trading Days before the date in question.
(e) In any case in which this Section 12.4 shall require that an adjustment be made immediately following a record date, the Company may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), in which case the Company shall, with respect to any Security converted after such record date and before such adjustment shall have become effective, (i) 30 consecutive defer paying any cash payment pursuant to Section 12.3 or issuing to the Holder of such Security the number of shares of Class A Common Stock and other Capital Stock of the Company issuable upon such conversion in excess of the number of shares of Class A Common Stock and other Capital Stock of the Company issuable thereupon only on the basis of the Conversion Price prior to adjustment and (ii), not later than five Business Days ending after such adjustment shall have become effective, pay to such Holder the appropriate cash payment pursuant to Section 12.3 and issue to such Holder the additional shares of Class A Common Stock and other Capital Stock of the Company issuable on such conversion.
(f) No adjustment in the last full Trading Day on Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% of the exchange or market referred Conversion Price; provided that any adjustments which by reason of this subsection (f) are not required to be made shall be carried forward and taken into account in determining any subsequent adjustment and provided, further, that adjustment shall be required and made in accordance with the provisions of this Article Twelve (other than this subsection (f)) not later than such Daily Market Prices prior time as may be required in order to preserve the tax-free nature of a distribution to the time holders of determination Securities or Class A Common Stock. All calculations under this Article Twelve shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(g) Whenever the Conversion Price is adjusted as herein provided, the Company shall promptly (i) file with the Trustee and each Conversion Agent an Officers' Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment, and (ii) mail or cause to be mailed a notice of such adjustment to each Holder of Securities at his address as the period commencing same appears on either the date next succeeding the first public announcement registry books of the issuance Company or in the filings described in Section 2.4. Anything in this Section 12.4 to the contrary notwithstanding, the Company shall be entitled to make such reductions in the Conversion Price, in addition to those required by this Section 12.4, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of such shares, distribution of rights or such warrants to purchase stock or such securities, or distribution of other distribution or such negotiated transaction through such last full trading day on assets (other than cash dividends) hereafter made by the exchange or market referred Company to in determining such Daily Market Prices prior to the time of determinationits stockholders shall not be taxable.
Appears in 1 contract
Sources: Exhibit (Interface Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1i) pay a dividend in shares of Common Stock to holders of Common Stock, (2ii) make a distribution in shares of Common Stock to holders of Common Stock, (3iii) subdivide or reclassify its outstanding shares of Common Stock into a greater number of shares of Common Stock or (4iv) combine or reclassify its outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of any Security Note thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities Notes been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into or exchangeable for Common Stock) at a price per share less than the Current Market Price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which (i) the numerator shall be the number of shares of Common Stock outstanding on such record date, date plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which (ii) the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to substantially all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earningsdividends), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which (i) the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which (ii) the denominator shall be such Current Market Price of the Common StockPrice. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the event that the Company shall issue distribute rights or warrants to subscribe for additional shares of the Company's capital stock securities (other than those the rights or warrants referred to in subsection (b) above) ("Rights") pro rata to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 14075.6, make proper provision so that each holder of a Security Note who converts such Security Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of 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 (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 Note so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to substantially all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 155% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by times the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which (i) the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share (based on the pro rata portion of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) Payments divided by the number of shares of Common Stock outstanding on the Distribution Record Date) of Common Stock and (ii) the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, ) such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company)cash, in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 155% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by times the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which (i) the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share (based on the pro rata portion of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions distributions, divided by the number of shares of Common Stock outstanding on the Purchase Date) of Common Stock and (ii) the denominator shall be such the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "In case the Company shall issue 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) that is less than the Current Market Price" Price (but excluding, among other things, issuances: (1) pursuant to any bona fide plan for the benefit of employees, directors or consultants of the Company now or hereafter in effect; (2) to acquire all or any portion of a business in an arm's-length transaction between the Company and an unaffiliated third party including, if applicable, issuances upon exercise of options or warrants assumed in connection with such transaction; (3) in a bona fide public offering pursuant to a firm commitment underwriting or sales at the market pursuant to a continuous offering stock program; (4) pursuant to the exercise of warrants, rights (including, without limitation, earnout rights) or options, or upon the conversion of convertible securities, which are issued and outstanding on the date hereof, or which may be issued in the future for fair value and with an exercise price or conversion price at least equal to the Current Market Price at the time of such issuance), 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 by a fraction of which (i) the numerator shall be (A) the number of shares of Common Stock outstanding on the record date or issuance date, as applicable, plus a number determined by (B) multiplying the number of additional shares of Common Stock offered or issuable upon conversion or exchange times the offering, conversion or exchange price per share of additional shares and dividing the product thereof by the Current Market Price on the record date or issuance date, as applicable, and (ii) the denominator shall be the number of shares of Common Stock outstanding on the record date or issuance date, as applicable, plus the number of additional shares of Common Stock offered or issuable upon conversion or exchange. Such adjustment shall be made whenever any such securities are issued and shall become effective on the date of such issuance.
(g) The Current Market Price per share of Common Stock on any date (the "Current Market Price") shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
(h) In any case in which this Section 6.6 shall require that an adjustment be made immediately following a record date for an event, the Company may elect to defer, until such event, issuing to the holder of any Note converted after such record date the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion over and above the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence of the right to receive such shares.
Appears in 1 contract
Adjustment of Conversion Price. The conversion price as stated in paragraph 8 of the Securities (the "Conversion Price Price") shall be subject to adjustment adjusted from time to time by the Company as follows:
(a) In case the Company shall (1i) pay a dividend in shares of Common Stock to all holders of Common Stock, (2ii) make a distribution in shares of Common Stock to all holders of Common Stock, (3iii) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock shares, or (4iv) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stockshares, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the that number of shares of Common Stock which he it would have owned immediately following such action had such Securities Security been converted immediately prior theretoto the happening of such event. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend in shares or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants described below and expiring not more than 45 60 days after such record date) 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 current market price per share of Common Stock (as determined pursuant to in accordance with subsection (f) belowe) of this Section 4.6) at the Common Stock on record date for the determination of shareholders entitled to receive such record daterights or warrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered total number of shares of Common Stock so offered (or the aggregate conversion price Conversion Price of the convertible securities so offered) would purchase at such Current Market Pricecurrent market price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately after such record date. If at the end of the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon the number of additional shares of Common Stock actually issued (or the number of shares of Common Stock issuable upon conversion of convertible securities actually issued).
(c) In case the Company shall distribute to all or substantially all holders of its Common Stock any shares of any class of Capital Stock capital stock of the Company (other than Common Stock), evidences of indebtedness or other non-cash assets (including securities of any company other than cash dividends out of current or retained earningsthe Company), or shall distribute to all or substantially all holders of its Common Stock rights or warrants to subscribe for or purchase any of its securities (other than excluding those Securities referred to in subsection (b) aboveof this Section 4.6), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided defined in subsection (fe) belowof this Section 4.6) of the Common Stock on the record date mentioned below less the then fair market value on such record date (as determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described in a Board Resolutionvalue) of the portion of the capital stock, evidences of indebtedness or other non-cash assets so distributed or of such subscription rights or warrants applicable to one share of Common StockStock (determined on the basis of the number of shares of Common Stock outstanding on the record date), and of which the denominator shall be such Current Market Price the current market price per share (as defined in subsection (e) of this Section 4.6) of the Common StockStock on such record date. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock shareholders entitled to receive such distribution. Notwithstanding the foregoing, in case the event that the Company shall issue distribute rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) aboveof this Section 4.6) ("Rights") pro rata to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 14074.6, 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; 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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute (a "Triggering Distribution") to all or substantially all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other all cash distributions to all or substantially all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case stock made within the 12 months preceding the date fixed for determining of payment of the stockholders entitled to such distribution (the "Triggering Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs this Section 4.6 has been made, exceeds 12.5% of the product of the current market price per share of Common Stock (c) or as determined in accordance with subsection (e) of this Section or this paragraph (d4.6) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Business Day (the "Determination Date") immediately preceding the day on which such Triggering Distribution Record Date is declared by the Company multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date such date (excluding shares held in the treasury Treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) Determination Date by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock (as determined in accordance with subsection (e) of this Section 4.6) on the Distribution Record Determination Date less the amount of cash (plus the fair market value of such cash and other consideration (including any Excess Paymentsconsideration) so distributed within such 12 months (including, without limitation, the Triggering Distribution) applicable to one share of Common Stock (equal to determined on the aggregate amount basis of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Determination Date) and the denominator shall be such Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock (as determined in accordance with subsection (e) of this Section 4.6) on the Distribution Record Determination Date, such reduction to become effective immediately prior to the opening of business on the day following the date on which the Triggering Distribution Record DateIS paid.
(e) In case a tender offer or other negotiated transaction made by For the Company or purpose of any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of computation under subsections (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Companyb), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph and (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date4.6, the Conversion Price shall be reduced so that the same shall equal the current market price determined by multiplying such 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 (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices daily closing prices for the shorter of (i) 30 consecutive Business Trading Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.45 Trading
Appears in 1 contract
Adjustment of Conversion Price. The conversion price or rate (herein called the "Conversion Price Price") for a series of Securities shall be as set forth in a Board Resolution, Officer's Certificate or executed supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to which the form and terms of the Securities of such series were established, and, except as otherwise provided therein, shall be subject to adjustment from time to time as follows:
(a) In case the Company Issuer shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) or make a distribution in shares of Common Stock to holders of on the Common Stock, (32) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or shares, (43) combine its outstanding shares of Common Stock into a smaller number of shares, (4) issue by reclassification of its Common Stock any shares of Common Stockcapital stock of the Issuer or (5) redeem any Associated Rights, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other capital stock of the Issuer which he would have owned immediately following such action had such Securities Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (e) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combinationreclassification. If as a result of an adjustment made pursuant to this subsection (a), the Holder of any Security thereafter surrendered for conversion shall become entitled to receive shares of two or more classes of capital stock (including shares of Common Stock and other capital stock) of the Issuer, the Board of Directors (whose determination shall be conclusive and shall be described in a statement filed with the Trustee) shall determine the allocation of the adjusted Conversion Price between or among shares of such classes of capital stock or shares of Common Stock and other capital stock.
(b) In case the Company Issuer shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than exceeding 45 days after from the date of such record dateissuance) 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 current market price per share (as determined pursuant to subsection (fd) below) of the Common Stock on such the record datedate mentioned below, the Conversion Price shall be adjusted to a price, computed to the nearest cent, so that the same shall equal the price determined by multiplying multiplying:
(1) the Conversion Price in effect immediately prior to the date of issuance of such record date rights or warrants by a fraction fraction, of which which
(2) the numerator shall be (A) the number of shares of Common Stock outstanding on the date of issuance of such record daterights or warrants, immediately prior to such issuance, plus (B) the number of shares of Common Stock which the aggregate offering price of the total number of shares so offered shares of Common Stock (for subscription or the aggregate conversion price of the convertible securities so offered) purchase would purchase at such Current Market Pricecurrent market price (determined by multiplying such total number of shares by the exercise price of such rights or warrants and dividing the product so obtained by such current market price), and of which which
(3) the denominator shall be (A) the number of shares of Common Stock outstanding on the date of issuance of such record date rights or warrants, immediately prior to such issuance, plus (B) the number of additional shares of Common Stock offered (or into which the convertible securities are so offered are convertible)for subscription or purchase. Such adjustments adjustment shall become effective immediately immediately, except as provided in subsection (e) below, after the record date for the determination of holders entitled to receive such record daterights or warrants.
(c) In case the Company Issuer shall distribute to substantially all holders of Common Stock shares Stock, evidences of any class of Capital Stock of indebtedness, equity securities (including equity interests in the Company Issuer's Subsidiaries) other than Common Stock, evidences of indebtedness or other assets (other than cash dividends paid out of current or retained earningssurplus of the Issuer), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), ) then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in subsection (fd) below) of the Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of Directors, whose determination shall shall, if made in good faith, be conclusive evidence of such fair market value and described in a Board Resolutionvalue) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price current market price per share of the Common Stock. Such adjustment shall become effective immediately immediately, except as provided in subsection (e) below, after the record date for the determination of the holders of Common Stock stockholders entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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.
(d) In case For the Company shall, by dividend or otherwise, at purpose of any time distribute to all holders of its Common Stock cash computation under subsections (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph b) and (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company)above, the Conversion Price shall be reduced so that the same shall equal the current market price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Last Sale Prices for the shorter 30 consecutive Trading Days commencing 45 Trading Days before the date in question.
(e) In any case in which this Section 13.4 shall require that an adjustment be made immediately following a record date, the Issuer may elect to defer the effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), in which case the Issuer shall, with respect to any Security converted after such record date and before such adjustment shall have become effective, (i) 30 consecutive defer paying any cash payment pursuant to Section 13.3 or issuing to the Holder of such Security the number of shares of Common Stock and other capital stock of the Issuer issuable upon such conversion in excess of the number of shares of Common Stock and other capital stock of the Issuer issuable thereupon only on the basis of the Conversion Price prior to adjustment and (ii), not later than five Business Days ending after such adjustment shall have become effective, pay to such Holder the appropriate cash payment pursuant to Section 13.3 and issue to such Holder the additional shares of Common Stock and other capital stock of the Issuer issuable on such conversion.
(f) No adjustment in the last full Trading Day on Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% of the exchange or market referred Conversion Price; provided, that any adjustments which by reason of this subsection (f) are not required to be made shall be carried forward and taken into account in determining any subsequent adjustment and, provided further, that adjustment shall be required and made in accordance with the provisions of this Article Thirteen (other than this subsection (f)) not later than such Daily Market Prices prior time as may be required in order to preserve the tax-free nature of a distribution to the time holders of determination Securities or Common Stock. All calculations under this Article Thirteen shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(g) Whenever the Conversion Price is adjusted as herein provided, the Issuer shall promptly (i) file with the Trustee and each Conversion Agent an Officer's Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment, and (ii) the period commencing on the date next succeeding the first public announcement of the issuance mail or cause to be mailed a notice of such adjustment to each Holder of Securities in the manner provided in Section 11.4. Anything in this Section 13.4 to the contrary notwithstanding, the Issuer shall be entitled to make such reductions in the Conversion Price, in addition to those required by this Section 13.4, as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights or such warrants to purchase stock or such securities, or distribution of other distribution or such negotiated transaction through such last full trading day on assets (other than cash dividends) hereafter made by the exchange or market referred Issuer to in determining such Daily Market Prices prior to the time of determinationits stockholders shall not be taxable.
Appears in 1 contract
Sources: Subordinated Indenture (Service Corporation International)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(ai) In case the Company Corporation shall (1A) pay a dividend in subdivide the outstanding shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares any class of Common Stock into a greater number of shares, including by way of a stock dividend, or (B) combine the outstanding shares of Common Stock or (4) combine its outstanding shares any class of Common Stock into a smaller number of shares of Common Stockshares, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that by multiplying the holder Conversion Price at which the shares of any Security thereafter surrendered for conversion Series A Preferred Stock were theretofore convertible by a fraction of which the denominator shall be entitled to receive the number of shares of Common Stock which he would have owned outstanding immediately following such action had such Securities been converted and of which the numerator shall be the number of shares of Common Stock outstanding immediately prior thereto. Any Such adjustment shall be made pursuant to this subsection (a) whenever any event listed above shall occur and shall become effective retroactively immediately after the close of business on the record date in the case of a dividend or distribution and shall become effective immediately after the close of business on the effective date in the case of a subdivision or combination.
(bii) In case the Company Corporation at any time or from time to time after the Issuance Date shall issue rights or warrants sell to substantially all holders of Common Stock entitling them (any Person any Convertible Securities without consideration or for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock consideration per share (or securities convertible into Common Stock) at having a conversion, exchange or exercise price per share share) less than the Current Market Price (as determined pursuant to subsection (f) below) on the date of the Common Stock on such record dateissuance, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying then the Conversion Price in effect immediately prior thereto shall be adjusted as provided below so that the Conversion Price therefor shall be equal to such record date the price determined by multiplying (A) the Conversion Price at which shares of Series A Preferred Stock were theretofore convertible by (B) a fraction of which (x) the numerator denominator shall be the sum of (1) the number of shares of Common Stock outstanding on such record date, plus the date of issuance of the Convertible Securities and (2) the number of additional shares of Common Stock that may be acquired upon conversion, exchange or exercise of such Convertible Securities, and (y) the numerator shall be the sum of (1) the number of shares of Common Stock outstanding on the date of issuance of such Convertible Securities and (2) the number of additional shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) offered would purchase at the Conversion Price on the date of issuance. Such adjustment shall be made whenever such Current Market PriceConvertible Securities are issued or sold, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after the close of business on the date of issuance or sale of such record dateConvertible Securities.
(ciii) In case the Company Corporation shall distribute at any time or from time to all holders time after the Issuance Date purchase, redeem or otherwise acquire any shares of Common Stock shares of any class of Capital Stock at a price per share greater than 105% of the Company other than Common Stock, evidences Current Market Price on the date of indebtedness or other assets (other than cash dividends out of current or retained earnings)such event, or in case the Corporation shall distribute to substantially all holders purchase, redeem or otherwise acquire Convertible Securities for a consideration per share of Common Stock rights into which such Convertible Security is exercisable for or warrants to subscribe for securities (other convertible or exchangeable into greater than those Securities referred to in subsection (b) above)the Current Market Price on the date of such event, then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior thereto shall be adjusted as provided below so that the Conversion Price therefor shall be equal to the date price determined by multiplying (A) the Conversion Price at which shares of such distribution Series A Preferred Stock were theretofore convertible by (B) a fraction of which (x) the numerator denominator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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 such event, and provisions of and applicable to the Rights.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share result of dividing: (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company1), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (Res Care Inc /Ky/)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment adjusted from time to time by the Company as follows:
(a) In case the Company shall (1i) pay a dividend in shares of Class A Common Stock to the holders of the Class A Common Stock, (2ii) make a distribution in shares of Class A Common Stock to the holders of the Class A Common Stock, (3iii) subdivide or split its outstanding shares of Common Stock into a greater number of shares of Common Stock or (4) combine its outstanding shares of Class A Common Stock into a smaller number of shares shares, or (iv) combine its outstanding Class A Common Stock into a smaller number of Common Stockshares, the Conversion Price in effect immediately prior to such action thereto shall be adjusted so that the holder Holder of any Security Note thereafter surrendered for conversion shall be entitled to receive the that number of shares of Class A Common Stock which he it would have owned immediately following such action or been entitled to receive had such Securities Note been converted immediately prior theretoto the happening of such event. Any An adjustment made pursuant to this subsection (a) shall become effective immediately after as of the close of business on the record date in the case of a dividend in shares or distribution and shall become effective immediately after as of the close of business on the effective date in the case of a subdivision subdivision, split or combination.
(b) In case the Company shall issue rights or warrants to all or substantially all holders of its Class A Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants described below and expiring not more than 45 60 days after such record date) to subscribe for or purchase shares of Class A Common Stock (or securities convertible into Class A Common Stock) at a price per share less than the Current Market Price per share of Class A Common Stock (as determined pursuant to in accordance with subsection (f) belowg) of this Section 4.06) at the Common Stock on record date for the determination of shareholders entitled to receive such record daterights or warrants, the Conversion Price in effect as of the close of business on the record date thereto shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such on the record date by a fraction of which the numerator shall be the number of shares of Class A Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered total number of shares of Class A Common Stock so offered (or the aggregate conversion price of the convertible securities notes 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 such record date plus the number of additional shares of Class A Common Stock offered (or into which the convertible securities notes so offered are convertible). Such adjustments adjustment shall be made successively whenever any such rights, warrants or convertible notes are issued, and shall become effective immediately after as of the close of business on such record date. If at the end of the period during which such rights or warrants are exercisable not all rights or warrants shall have been exercised, the adjusted Conversion Price shall be immediately readjusted to what it would have been based upon the number of additional shares of Class A Common Stock actually issued (or the number of shares of Class A Common Stock issuable upon conversion of convertible Notes actually issued).
(c) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock, cash (excluding (x) any regular cash dividend on the Common Stock to the extent that the aggregate cash dividend per share of Common Stock in any four fiscal quarters does not exceed the greater of (A) the amount per share of Common Stock of the cash dividend on the Common Stock for the preceding four fiscal quarters to the extent that such dividend for the preceding four fiscal quarters did not require any adjustment of the Conversion Price pursuant to this Section 4.06(c) (as adjusted to reflect subdivisions or combinations of the Common Stock), and (B) 3.75% of the arithmetic average of the Closing Prices (as set forth in Section 4.06(g)) during the ten Trading Days immediately prior to the date of declaration of such dividend, (y) any dividend or distribution in connection with the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, and (z) any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to Section 4.06(e)), then, in such case, the Conversion Price shall be decreased so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the close of business on the record date of such action by a fraction of which the numerator shall be the Current Market Price of the Class A Common Stock on such record date less the amount of cash so distributed (and not excluded as provided above) applicable to one share of Common Stock and the denominator shall be Current Market Price of the Class A Common Stock on such record date, such decrease shall be effective immediately prior to the opening of business on the day following the record date of such action; provided, however, that in the event the portion of cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Class A Common Stock on such record date, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion the amount of cash such Holder would have received had such Holder converted each Note on the record date. In the event that such dividend or distribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such dividend or distribution had not been declared. If any adjustment is required to be made as set forth in this Section 4.06(c) as a result of a distribution that is a regular dividend, such adjustment shall be based upon the amount by which such distribution exceeds the amount of the regular cash dividend permitted to be excluded pursuant hereto. If an adjustment is required to be made as set forth in this Section 4.06(c) above as a result of a distribution that is not a regular dividend, such adjustment shall be based upon the full amount of the distribution.
(d) In case a tender or exchange offer made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of consideration per share of Common Stock having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that, as of the last time (the "Expiration Time") tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended), exceeds the Current Market Price of the Class A Common Stock on the Trading Day next succeeding the Expiration Time, the Conversion Price shall be decreased so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be the product of the number of Class A Common Stock outstanding (including any tendered or exchanged shares) on the Expiration Time multiplied by the Current Market Price of the Class A Common Stock on the Trading Day next succeeding the Expiration Time, less the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares") and the denominator shall be the product of the number of Class A Common Stock outstanding (less any Purchased Shares) on the Expiration Time and the Current Market Price of the Class A Common Stock on the Trading Day next succeeding the Expiration Time, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender or exchange offer, but the Company is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such tender or exchange offer has not been made.
(e) In case the Company shall distribute to all or substantially all holders of its Class A Common Stock any shares of capital stock of the Company (other than Class A Common Stock), evidences of indebtedness or other non-cash assets (including securities of any Person), or shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of its Class A Common Stock rights or warrants to subscribe for or purchase any of its securities (other than excluding those Securities referred to in subsection (b) aboveof this Section 4.06), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to as of the close of business on the record date of for such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Class A Common Stock on the record date mentioned below less the then fair market value on such record date (as reasonably determined by the Board of Directors, whose determination shall be conclusive evidence of such fair market value and described set forth in a Board ResolutionResolution delivered to the Trustee in an Officers' Certificate) of the portion of the capital stock, evidences of indebtedness or other assets so distributed or of such subscription rights or warrants applicable to one share of Class A Common StockStock (determined on the basis of the number of shares of Class A Common Stock outstanding on the record date), and of which the denominator shall be such the Current Market Price per share (as determined in accordance with subsection (g) of this Section 4.06) of the Class A Common StockStock on such record date. Such adjustment shall become effective immediately after as of the close of business on the record date for the determination of the holders of Common Stock shareholders entitled to receive such distribution. Notwithstanding the foregoing, in case the event that the Company shall issue distribute rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) aboveof this Section 4.06) ("Rights") pro rata to substantially all holders of Class A Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 14074.06, make proper provision so that each holder of a Security Note who converts such Security Note (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Class A Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Class A Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; Rights and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Class A Common Stock into which the principal amount of the Security Note so converted was convertible immediately prior to as of the close of business on the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights.
(df) In case of a tender or exchange offer made by a Person other than the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings Subsidiary of the Company but excluding any cash that is distributed as part for an amount which increases the offeror's ownership of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Class A Common Stock made to more than 35% of the Class A Common Stock outstanding and shall involve the payment by such Person of consideration per share of Class A Common Stock having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive, and described in cash plus (ya Board Resolution) all Excess Payments, in each case made within at the 12 months preceding the date fixed for determining the stockholders entitled to such distribution last time (the "Distribution Record DateTender Expiration Time") and in respect of which no Conversion Price adjustment tenders or exchanges may be made pursuant to paragraphs such tender or exchange offer (cas it shall have been amended) or (e) of this Section or this paragraph (d) has been made, that exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Class A Common Stock on the Distribution Record Date multiplied by Trading Day next succeeding the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held Tender Expiration Time, and in the treasury which, as of the Company)Tender Expiration Time, the Board of Directors is not recommending rejection of the offer, the Conversion Price shall be reduced decreased so that the same shall equal the price determined by multiplying such the Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) Tender Expiration Time by a fraction of which the numerator shall be the number of shares of Class A Common Stock outstanding (including any tendered or exchanged shares) at the Tender Expiration Time multiplied by the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Class A Common Stock on the Distribution Record Date less Trading Day next succeeding the amount Tender Expiration Time and the denominator shall be the sum of such cash and other consideration (including any Excess Paymentsx) so distributed applicable to one share the fair market value (determined as aforesaid) of Common Stock (equal to the aggregate amount 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 Tender Expiration Time (the shares deemed so accepted, up to any such cash maximum, being referred to as the "Accepted Purchased Shares") and other consideration (including any Excess Paymentsy) divided by the product of the number of shares of Class A Common Stock outstanding on (less any Accepted Purchased Shares) at the Distribution Record Date) Tender Expiration Time and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Class A Common Stock on the Distribution Record DateTrading Day next succeeding the Tender Expiration Time, such reduction decrease to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) Tender Expiration Time. In case a tender offer or other negotiated transaction made by the Company or event that such Person is obligated to purchase shares pursuant to any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender exchange offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) but such Person is permanently prevented by applicable law from effecting any such purchases or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Dateall such purchases are rescinded, the Conversion Price shall again be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior adjusted to the effectiveness of be the Conversion Price reduction contemplated by which would then be in effect if such tender or exchange offer had not been made. Notwithstanding the foregoing, the adjustment described in this paragraph Section 4.06(f)) shall not be made if, (ea) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on Tender Expiration Time, the Purchase Date less offering documents with respect to such offer disclose a plan or intention to cause the amount of such Excess Payments and such cash distributions, Company to engage in any transaction described in Article 6 or (b) if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) Initial Purchaser does not beneficially own all of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase DateNotes.
(fg) The "Current Market Price" per share For purposes of Common Stock on any date this Section 4.06, the following terms shall be deemed to be have the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.meaning indicated:
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price Section 2 of the Original Debenture shall be subject amended to adjustment from time add a new subsection (b), and to time renumber the subsequent subsections so that the former subsection (b) becomes subsection (c) and the former subsection (c) becomes subsection (d). The new subsection (b) shall state as follows:
(ab) In case Except as set forth herein, if at any time after the Company date of this Amendment, the Maker shall (1) pay a dividend in shares of Common Stock to holders of issue or sell Common Stock, (2) make a distribution in shares of Common Stock to holders of or warrants or options exercisable for Common Stock, (3) subdivide its outstanding shares of Common Stock preferred stock convertible into a greater number of shares of Common Stock or (4) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, or any other securities convertible into Common Stock, in a capital raising transaction, at a consideration per share, or exercise or conversion price per share, as applicable, less than the Conversion Price in effect immediately prior to such action issuance, the Conversion Price shall be adjusted so that reduced to such issuance price. For purposes of determining the holder issuance price, the amount of consideration paid upon issuance of the security and any Security thereafter surrendered for additional consideration to be paid upon conversion or exercise of the same security shall be entitled combined to receive determine the total issuance price. The following securities shall be excluded from the foregoing and shall not result in any change to the Conversion Price: (i) capital stock, options or convertible securities issued to directors, officers, employees or consultants of the Maker in connection with their service as directors of the Maker, their employment by the Maker or their retention as consultants by the Maker, (ii) shares of Common Stock issued upon the conversion or exercise of options or convertible securities that were issued and outstanding on the date immediately preceding the date of this Amendment, provided such securities are not amended after the date of this Amendment to increase the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made issuable thereunder or to lower the exercise or conversion price thereof (iii) securities issued pursuant to this subsection the Debenture and securities issued upon the exercise or conversion of those securities, (aiv) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to substantially all holders shares of Common Stock entitling them (for issued or issuable by reason of a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights dividend, stock split or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase other distribution on shares of Common Stock (but only to the extent that such a dividend, split or securities convertible into Common Stock) at a price per share less than the Current Market Price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, distribution results in an adjustment in the Conversion Price shall be adjusted so that pursuant to the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date other provisions of this Debenture), and (v) capital stock, options or convertible securities issued as consideration for an acquisition or strategic transaction approved by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price majority of the offered shares disinterested directors of Common Stock the Maker, provided that any such issuance shall only be a person or entity (or to the aggregate conversion price equityholders of an entity) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the convertible securities so offered) would purchase at such Current Market Price, Maker and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior provide to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for Maker additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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, benefits in addition to the shares investment of Common Stock issuable upon such conversion funds, but shall not, for the purposes of this clause (the "Conversion Shares"v), include a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to transaction in which the date Maker is issuing securities primarily for the distribution purpose of raising capital or 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 an entity whose primary business is entitled at the time of such conversion investing in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of 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 Rightssecurities.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
Appears in 1 contract
Adjustment of Conversion Price. The conversion price or rate (herein called the "Conversion Price Price") for a series of Securities shall be as set forth in a Board Resolution, Officers' Certificate or executed supplemental indenture referred to in Sections 201 and 301 by or pursuant to which the form and terms of the Securities of such series were established, and, except as otherwise provided therein, shall be subject to adjustment from time to time as follows:
: USA WASTE SERVICES, INC. SUBORDINATED INDENTURE - 73 - 81 (a) In case the Company shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) or make a distribution in shares of Common Stock to holders of on the Common Stock, (32) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or shares, (43) combine its outstanding shares of Common Stock into a smaller number of shares or (4) issue by reclassification of its Common StockStock any shares of capital stock of the Company, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other capital stock of the Company which he would have owned immediately following such action had such Securities Security been converted immediately prior thereto. Any An adjustment made pursuant to this subsection (a) shall become effective immediately immediately, except as provided in subsection (e) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision subdivision, combination or combination.
reclassification. If as a result of an adjustment made pursuant to this subsection (b) In case a), the Company Holder of any Security thereafter surrendered for conversion shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock become entitled to receive such rights shares of two or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase classes of capital stock (including shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price (as determined pursuant to subsection (f) belowand other capital stock) of the Common Stock on such record dateCompany, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then fair market value (as determined by the Board of Directors, Directors (whose determination shall be conclusive evidence of such fair market value and shall be described in a Board Resolutionstatement filed with the Trustee) shall determine the allocation of the portion of the assets so distributed adjusted Conversion Price between or among shares of such subscription rights or warrants applicable to one share classes of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Datecapital stock.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
Appears in 1 contract
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or (4) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. In the event of a reverse stock split of the Common Stock, the Conversion Price shall be subject to further adjustment as provided in Section 5.6(f) below.
(b) In case the Company shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price current market price per share (as determined pursuant to subsection (fg) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Pricecurrent market price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price current market price per share of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the event that the Company shall issue distribute rights or warrants to subscribe for additional shares of the Company's capital stock Capital Stock (other than those the Common Stock referred to in subsection (b) above) ("Rights") pro rata to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 14075.6, 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by times the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share (based on the pro rata portion of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) ), divided by the number of shares of Common Stock outstanding on the Distribution Record Date) of Common Stock and the denominator shall be such Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (specifically including any distributions of cash out of current or retained earnings of the Companyearnings), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by times the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share (based on the pro rata portion of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions distributions, divided by the number of shares of Common Stock outstanding on the Purchase Date) of Common Stock and the denominator shall be such Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) If the Company effects a reverse stock split of the Common Stock prior to 90 days after the SEC has declared effective the Shelf Registration Statement, the Conversion Price related to the Securities shall be adjusted first as provided in Section 5.6(a) above, and then shall be further adjusted on the 15th day following the expiration of the Pricing Period (as defined below) by multiplying the existing Conversion Price by a fraction, the numerator of which shall be the VWAP per share of the Common Stock for the period beginning on the 11th trading day following the effective date of the reverse stock split and ending on the 30th trading day following the effective date of the reverse stock split (such period being the "Pricing Period") and the denominator of which shall be the VWAP per share of the Common Stock for the five trading day period ending on the earlier of (i) the date that the Company publicly discloses its intention to effectuate (or consider) such reverse stock split through a press release, proxy materials or other means or (ii) the date that the Company publicly discloses that it has received any notice or other communication from the NYSE to the effect that the Common Stock will be de-listed.
(g) The "Current Market Price" current market price per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
(h) In any case in which this Section 5.6 shall require that an adjustment be made immediately following a record date for an event, the Company may elect to defer, until such event, issuing to the holder of any Security converted after such record date the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion over and above the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its stock transfer agent to issue due bills or other appropriate evidence of the right to receive such shares.
Appears in 1 contract
Sources: Indenture (Coeur D Alene Mines Corp)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company Issuer shall (1) pay a dividend on any class of its capital stock in shares of Common Stock to holders of Common Stockany class, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Class A Common Stock into a greater number of shares of Common Stock or (43) combine its outstanding shares of Class A Common Stock into a smaller number of shares of Common Stockshares, the Conversion Price in effect immediately prior to such action thereto shall be adjusted as provided below so that the holder of any Security Conversion Price thereafter surrendered for conversion shall be entitled to receive determined by multiplying the Conversion Price at which the Securities were theretofore convertible by a fraction, the denominator of which shall be the number of shares of Class A Common Stock which he would have owned outstanding immediately following such action had such Securities been converted and the numerator of which shall be the number of shares of Class A Common Stock outstanding immediately prior thereto. Any Such adjustment shall be made pursuant to this subsection (a) whenever any event listed above shall occur and shall become effective immediately retroactively immediately, except as provided in subsection (e) below, after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company Issuer shall issue (i) rights or warrants to substantially all holders of Class A Common Stock entitling them (for a period commencing no earlier than expiring within 45 days after the record date for the determination of holders of Common Stock determining stockholders entitled to receive such rights or warrants and expiring not more than 45 days after such record datewarrants) to subscribe for or purchase shares of its Common Stock (or securities convertible into Common Stock) of any class at a price per share less than the Current Market Price current market price per share of the Class A Common Stock (as determined pursuant to subsection (fd) below) on the record date therefor (the "Current Market Price"), or in case the Issuer shall issue to all holders of the its Class A Common Stock on such record dateother securities convertible into or exchangeable for shares of its Common Stock of any class for a consideration per share of Common Stock deliverable upon conversion or exchange thereof less than the Current Market Price, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying then the Conversion Price in effect immediately prior thereto shall be adjusted as provided below so that the Conversion Price therefor shall be equal to such record date the price determined by multiplying:
(1) the Conversion Price at which the Securities were theretofore convertible by
(2) a fraction fraction, of which (A) the numerator denominator shall be the sum of (i) the number of shares of Common Stock of all classes outstanding on such record date, plus the number date of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price issuance of the convertible securities so offeredor exchangeable securities, rights or warrants and (ii) would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered for subscription or purchase or issuable upon such conversion or exchange, and (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(cB) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price sum of (determined as provided in subsection (fi) below) the number of the shares of Common Stock of all classes outstanding on the record date mentioned below less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive evidence issuance of such fair market value and described in a Board Resolution) of the portion of the assets so distributed convertible or of such subscription exchangeable securities, rights or warrants applicable to one share and (ii) the number of additional shares of Common Stock, and Stock of all classes which the denominator shall be such aggregate offering price of the number of shares of Common Stock so offered would purchase at the Current Market Price of the Class A Common Stock. Such adjustment shall be made whenever such convertible or exchangeable securities, rights or warrants are issued and shall become effective immediately immediately, except as provided in subsection (e) below, after the record date for the determination of the holders of Common Stock stockholders entitled to receive such distributionsecurities. Notwithstanding However, upon the foregoing, in case the Company shall issue rights expiration of any right or warrants warrant to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of purchase Common Stock, the Company may, issuance of which resulted in lieu of making any an adjustment in the Conversion Price pursuant to this Section 1407, 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"13.04(b), a number of Rights to be determined as follows: (i) if any such conversion occurs on right 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) divided by the number of shares of Common Stock outstanding on the Distribution Record Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (including any distributions of cash out of current or retained earnings of the Company), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions divided by the number of shares of Common Stock outstanding on the Purchase Date) and the denominator shall be such Current Market Price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.warrant
Appears in 1 contract
Sources: Convertible Subordinated Indenture (Chancellor Media Corp/)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or (4) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights rights, warrants or warrants options to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights rights, warrants or warrants options and expiring not more than 45 days after such record date) 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 current market price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Pricecurrent market price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company stock other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights rights, warrants or warrants options to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price current market price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights rights, warrants or warrants options applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price current market price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the event that the Company shall issue rights distribute rights, warrants or warrants to subscribe for additional shares of the Company's capital stock options (other than those referred to in subsection (b) above) ("Rights") pro rata to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 14071304, 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 (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.
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 1510% of the product of the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by times the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share (based on the pro rata portion of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) ), divided by the number of shares of Common Stock outstanding on the Distribution Record Date) of Common Stock and the denominator shall be such Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (specifically including any distributions of cash out of current or retained earnings of the Companyearnings), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 1510% of the product of the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by times the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share (based on the pro rata portion of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions distributions, divided by the number of shares of Common Stock outstanding on the Purchase Date) of Common Stock and the denominator shall be such Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" current market price per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights rights, warrants or such warrants options or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
(g) In any case in which this Section 1304 shall require that an adjustment be made immediately following a record date, 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 1308 below) issuing to the holder of any Security converted after such record date the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion over and above the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence of the right to receive such shares.
Appears in 1 contract
Sources: Indenture (Playtex Products Inc)
Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend in shares of Common Stock to holders of Common Stock, (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or (4) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the Current Market Price current market price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the numerator shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such Current Market Pricecurrent market price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date.
(c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company other than Common Stock, evidences of indebtedness or other assets (other than cash dividends out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those Securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less the then 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) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such Current Market Price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in case the Company shall issue rights or warrants to subscribe for additional shares of the Company's capital stock (other than those referred to in subsection (b) above) ("Rights") to substantially all holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1407, 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 (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.than
(d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the stockholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date multiplied by times the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share (based on the pro rata portion of Common Stock (equal to the aggregate amount of such cash and other consideration (including any Excess Payments) ), divided by the number of shares of Common Stock outstanding on the Distribution Record Date) of Common Stock and the denominator shall be such Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date.Common
(e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (specifically including any distributions of cash out of current or retained earnings of the Companyearnings), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date multiplied by times the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company or any Subsidiary of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share (based on the pro rata portion of Common Stock (equal to the aggregate amount of such Excess Payments and such cash distributions distributions, divided by the number of shares of Common Stock outstanding on the Purchase Date) of Common Stock and the denominator shall be such Current Market Price current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the day following the Purchase Date.
(f) The "Current Market Price" current market price per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full Trading Day trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination.
(g) In any case in which this Section 5.6 shall require that an adjustment be made immediately following a record date for an event, the Company may elect to defer, until such event, issuing to the holder of any Security converted after such record date the shares of Common Stock
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Sources: Indenture (HMT Technology Corp)