Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment. (1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. (2) Subject to the last sentence of paragraph (7) of this Section, in case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants, the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company. (3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective. (4) Subject to the last sentence of paragraph (7) of this Section, in case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution in connection with any merger or consolidation to which Section 1211 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Date. (5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends), distribute to all holders of its Common Stock cash in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made (the "combined cash and tender amount"), exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination. (6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I) all Excess Payments payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.5% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount. (7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event. (8) For the purpose of any computation under paragraphs (2), (4), (5) and (6) of this Section, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of the Common Stock on the Mexican Stock Exchange for 30 consecutive Trading Days commencing not more than 45 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution. (9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be. (10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. (11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment. (12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.
Appears in 2 contracts
Sources: Indenture (Telefonos De Mexico S a De C V), Indenture (Telefonos De Mexico S a De C V)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective (subject to paragraph (12) of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSECTION 11.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants (a) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (b) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (12)of this SECTION 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SectionSECTION 11.4, (ii) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (5) and (6) of this SECTION 11.4, (iii) any dividend or distribution referred to in paragraph (1) of this Section SECTION 11.4 and (iv) any distribution in connection with any merger or consolidation to which Section 1211 SECTION 11.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSECTION 11.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the TrusteeResolution) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (12) of this SECTION 11.4) immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries subsidiaries for all or any portion of the Common Stock concluded within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section SECTION 11.4 has been made (the "combined cash and tender amount"), ) exceeds 12.510% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSECTION 11.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (12) of SECTION 11.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this SectionSECTION 11.4) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.510% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as amended upon determined by the expiration thereofBoard of Directors, whose determination shall be conclusive and described in a Board Resolution) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring concluded within the 12 months 365-day period preceding the expiration completion of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock made exclusively in cash within 12 months the 365-day period preceding the expiration completion of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section SECTION 11.4 has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSECTION 11.4) as of the last time completion of such tender offer (the "Expiration TimeCompletion Date") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration TimeCompletion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration TimeCompletion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time Completion Date by a fraction of which (i) the numerator of which shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSECTION 11.4) on the date of the Expiration Time Completion Date multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time Completion Date less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Completion Date multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date(the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 SECTION 11.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and or (6) of this SectionSECTION 11.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Average Sales Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " 'ex' "ex date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; providedPROVIDED, howeverHOWEVER, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this SectionSECTION 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of stock Common Stock or issuance of rights or warrants to purchase or subscribe for stock Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, Notwithstanding the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date foregoing provisions of this IndentureSECTION 11.4, each ADS represents 20 L Shares. If the number no adjustment of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)
Appears in 2 contracts
Sources: Indenture (Etoys Inc), Indenture (Etoys Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock Capital Stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective (subject to paragraph (l) of this Section 9.04) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. In no event shall this paragraph (a) apply in the case of an ordinary dividend.
(2b) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 9.04) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants (1) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (2) that are only exercisable upon the occurrence of a specified triggering event and such triggering event has not occurred), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (l) of this 9.04) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2b), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtednessIndebtedness, shares of any class of capital stockCapital Stock, or other property (including cash or assets or securities, but excluding (i1) any rights, options or warrants referred to in paragraph (2b) of this SectionSection 9.04 and the distribution of rights to all holders of Common Stock pursuant to the adoption of a stockholders’ rights plan or the detachment of such rights under the terms of such stockholders’ rights plan, (ii2) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (iiie) and (f) of this Section 9.04 and (3) any dividend or distribution referred to in paragraph (1a) of this Section and (iv) any distribution in connection with any merger or consolidation to which Section 1211 applies)9.04, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 9.04) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the TrusteeResolution) on the Reference Date of the portion of the assets, shares or evidences of indebtedness Indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share (determined as provided in paragraph (h) of this Section 9.04) of the Common Stock, such adjustment to become effective (subject to paragraph (l) of this Section 9.04) immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution.
(5e) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding cash portions of distribution referred to in Section 9.04(d) and any cash that is distributed upon a merger or consolidation to which Section 9.11 applies) in an aggregate amount that, combined together with (I1) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5e) has been made and (II2) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of other consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries Subsidiary for all or any portion of the Common Stock concluded within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6f) of this Section 9.04 has been made (the "combined cash “Combined Cash and tender amount"), Tender Amount”) exceeds 12.5% ten percent (10%) of the product of the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 9.04) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"“Aggregate Current Market Price”), then, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (l) of Section 9.04, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (A) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 9.04) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (i) the excess of such Combined Cash and Tender Amount over ten percent (10%) of such Aggregate Current Market Price divided by (ii) the number of shares of Common Stock outstanding on such date fixed for determination and (B) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 9.04) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination.
(6f) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as amended upon determined by the expiration thereofBoard of Directors, whose determination shall be conclusive and described in a Board Resolution) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I1) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of other consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring concluded within the 12 months 365-day period preceding the expiration completion of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6f) has been made and (II2) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's ’s Common Stock made exclusively in cash within 12 months the 365-day period preceding the expiration completion of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5e) of this Section 9.04 has been made (the "combined tender “Combined Tender and cash amount"Cash Amount”) exceeds 12.5% ten percent (10%) of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SectionSection 9.04) as of the last time completion of such tender offer (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended“Completion Date”) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration TimeCompletion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration TimeCompletion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time Completion Date by a fraction (A) the numerator of which shall be equal to (i) the numerator shall be the product of (Ax) the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SectionSection 9.04) as of on the Expiration Time Completion Date multiplied by (By) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of on the Expiration Time Completion Date less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the Combined Tender and Cash Amount, and (B) the denominator of which shall be (A) equal to the product of (Ix) the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SectionSection 9.04) on the date as of the Expiration Time Completion Date multiplied by (IIy) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date as of the Expiration Time Completion Date less (B) the combined tender number of all shares validly tendered and cash amountnot withdrawn as of the Completion Date.
(7g) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 9.11 applies) shall be deemed to involve (a1) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "“the date fixed for the determination of stockholders entitled to receive such distribution" ” and "“the date fixed for such determination" ” within the meaning of paragraph (4d) of this SectionSection 9.04), and (b2) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "“the day upon which such subdivision becomes effective" ” or "“the day upon which such combination becomes effective"”, as the case may be, and "“the day upon which such subdivision or combination becomes effective" ” within the meaning of paragraph (3c) of this SectionSection 9.04). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) h) For the purpose of any computation under paragraphs (2b), (4d), (5e) and or (6f) of this SectionSection 9.04, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of Volume Weighted Average Price for the last reported sale price of the Common Stock on the Mexican Stock Exchange for 30 consecutive Trading Days commencing not more than 45 Trading Days before, and ending not later than, the earlier of the day in question and the day Day before the "ex" date “ex date” with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " 'ex' “ex date", ,” when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9i) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9i)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9i) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article 9 shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10j) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1a), (2b), (3c), (4d), (5e) and (6f) of this SectionSection 9.04, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of stock Common Stock or issuance of rights or warrants to purchase or subscribe for stock Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.06 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11k) Notwithstanding the foregoing provisions of this Section 9.04, no adjustment of the Conversion Rate shall be required to be made (1) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (2) because of a tender or exchange offer of the character described in Rule 13e-4(h)(5) under the Exchange Act or any successor rule thereto or (3) as a result of a rights plan or poison pill implemented by the Company.
(l) In any case in which this Section 1204 9.04 shall require that an adjustment shall become effective be made immediately after following a determination date for an eventRecord Date, the Company may elect to defer until the occurrence 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 to which this Article 9 applies, converted after such Record Date and on and before such adjustment shall have become effective (i1) defer paying any cash payment pursuant to Section 9.03 hereof or issuing to the Holder of any Convertible such Security converted after such record date and before the occurrence number of such event the additional ADSs shares of Common Stock issuable upon such conversion by reason in excess of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one shares of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.Common Stock issuable thereupo
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Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock with out any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, option or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip script certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution in connection with any merger mergers or consolidation consolidations to which Section 1211 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directorsdirectors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section or cash distributed upon a merger or consolidation to which Section 12.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other all-cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section 12.4 has been made (the "combined cash and tender amount"), ) exceeds 12.510% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock within 12 months 365- day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator of which shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 12.4) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this SectionSection 12.4). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and or (6) of this SectionSection 12.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, than the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " "'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades the regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this SectionSection 12.4, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. The Company shall have the power to resolve any ambiguity or correct any error in this paragraph (10) and its actions in so doing shall, absent manifest error, be final and conclusive.
(11) In any case in which Notwithstanding the foregoing provisions of this Section 1204 shall require that an Section, no adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment Conversion Rate shall be required by such event over and above to be made (a) upon the ADSs issuable upon such conversion before giving effect issuance of shares of Common Stock pursuant to such conversion rate adjustment and any present or future plan for the reinvestment of dividends or (iib) paying to such Holder any amount in cash in lieu because of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ tender or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence exchange offer of the event requiring such adjustmentcharacter described in Rule 13e-4(h)(5) under the Exchange Act or any successor rule thereto.
(12) The initial Conversion Rate reflects that as of To the date of this Indentureextent permitted by applicable law, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (as so changed20) days, the increase is irrevocable during such period, and the Board of Directors shall have made a determination that such increase would be adjusted proportionately.in the best interest
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number -70- 74 of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market pricepurchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution consideration distributed in connection with any merger or consolidation to which Section 1211 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directorsdirectors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section or cash distributed upon a merger or consolidation to which Section 12.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other all-cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section 12.4 has been made (the "combined cash and tender amount"), ) exceeds 12.510% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.510% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock within 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator of which shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 12.4) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this SectionSection 12.4). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and or (6) of this SectionSection 12.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, than the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " "'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this SectionSection 12.4, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. The Company shall have the power to resolve any ambiguity or correct any error in this paragraph (10) and its actions in so doing shall, absent manifest error, be final and conclusive.
(11) In any case in which Notwithstanding the foregoing provisions of this Section 1204 shall require that an Section, no adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment Conversion Rate shall be required by such event over and above to be made (a) upon the ADSs issuable upon such conversion before giving effect issuance of shares of Common Stock pursuant to such conversion rate adjustment and any present or future plan for the reinvestment of dividends or (iib) paying to such Holder any amount in cash in lieu because of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ tender or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence exchange offer of the event requiring such adjustmentcharacter described in Rule 13e-4(h)(5) under the Exchange Act or any successor rule thereto.
(12) The initial Conversion Rate reflects that as of To the date of this Indentureextent permitted by applicable law, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (as so changed20) shall be adjusted proportionately.days, the increas
Appears in 1 contract
Sources: Indenture (Ciena Corp)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 11.4) of the Common Stock on the date fixed ------------ for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution in connection with any merger or consolidation to which Section 1211 11.11 ------------- applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 11.4) of the Common Stock on the date fixed for such ------------ determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which Section 11.11 applies or as part of a ------------- distribution referred to in paragraph (4) of this Section) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section 11.4 has been made (the "combined cash and tender amount"), ) exceeds 12.5------------ 10% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSection 11.4) of the Common Stock on the date for the ------------ determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 11.4) of the Common Stock on such ------------ date for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 11.4) as of the last time (the ------------ "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator of which shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 11.4) on the date of ------------ the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 11.4) as of the ------------ Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 11.11 applies) shall be deemed to involve (a) a ------------- distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this SectionSection 11.4). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.------------
(8) For the purpose of any computation under paragraphs (2), (4), (5) and or (6) of this SectionSection 11.4, the current market price per share of Common Stock ------------ on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " "'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this -------- ------- paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this SectionSection 11.4, as ------------ it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of stock Common Stock or issuance of rights or warrants to purchase or subscribe for stock Common Stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event. To the extent permitted by applicable law, the Company from time to time may defer until increase the occurrence Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such event (i) issuing to increase would be in the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason best interests of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203Company, which determination shall be conclusive; provided, however, that such -------- ------- increase shall not be taken into account for purposes of determining whether the Closing Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence give notice of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as increase to the Holders of Securities in the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether manner provided in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.Section
Appears in 1 contract
Sources: Indenture (Siebel Systems Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this SectionSection 12.12, in case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market pricepurchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SectionSection or any other rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution consideration distributed in connection with any merger or consolidation to which Section 1211 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section or cash distributed upon a merger or consolidation to which Section 12.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other all-cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section 12.4 has been made (the "combined cash and tender amount"), ) exceeds 12.510% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.510% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock within 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator of which shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 12.4) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this SectionSection 12.4). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and or (6) of this SectionSection 12.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, than the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " "'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this SectionSection 12.4, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. The Company shall have the power to resolve any ambiguity or correct any error in this paragraph (10) and its actions in so doing shall, absent manifest error, be final and conclusive.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, Notwithstanding the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date foregoing provisions of this IndentureSection, each ADS represents 20 L Shares. If the number no adjustment of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.required to be made (a) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends or (b) because of a tender or exchange offer of the character described in Rule 13e-4(h)(5) under the Exchange Act
Appears in 1 contract
Sources: Indenture (Atmi Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 11.4) of the ------------ Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution in connection with any merger or consolidation to which Section 1211 11.11 ------------- applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 11.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less ------------ the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which Section 11.11 applies or as part of a ------------- distribution referred to in paragraph (4) of this Section) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section 11.4 has been made (the "combined cash and tender amount"), exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I) all Excess Payments payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.5% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount.
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and (6) of this Section, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of the Common Stock on the Mexican Stock Exchange for 30 consecutive Trading Days commencing not more than 45 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.------------
Appears in 1 contract
Sources: Indenture (Digital Island Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective (subject to paragraph (l) of this Section 10.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2b) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 10.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants (1) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (2) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (l) of this Section 10.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2b), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i1) any rights, options or warrants referred to in paragraph (2b) of this SectionSection 10.4 and the distribution of rights to all holders of Common Stock pursuant to the adoption of a stockholders' rights plan or the detachment of such rights under the terms of such stockholders' rights plan, (ii2) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (iiie) and (f) of this Section 10.4, (3) any dividend or distribution referred to in paragraph (1a) of this Section 10.4 and (iv4) any distribution in connection with any merger or consolidation to which Section 1211 10.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 10.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the TrusteeResolution) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (l) of this Section 10.4) immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. Under the provisions of the Company's Rights Agreement dated as of November 11, 1996 between the Company and ▇▇▇▇▇▇ Trust Company of California, as amended as of November 20, 2002 between the Company, ▇▇▇▇▇▇ Trust Company of California and Computershare Investor Services LLC (the "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 of Securities 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 tine of conversion), subject to the limitations set forth in the Rights Plan. In addition, if the Company implements a new rights plan ("New Rights Plan"), the Company will provide under such New Rights Plan that the Holders of the Securities will receive, in addition to the Common Stock, the rights under the New Rights Plan (whether or not the rights under the New Rights Plan have separated from the Common Stock at the time of conversion), subject to any limitations set forth in the New Rights Plan.
(5e) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding cash portions of distribution referred to in Section 10.4(d) and any cash that is distributed upon a merger or consolidation to which Section 10.11 applies) in an aggregate amount that, combined together with (I1) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5e) has been made and (II2) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries Subsidiary for all or any portion of the Common Stock concluded within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6f) of this Section 10.4 has been made (the "combined cash and tender amount"), ) exceeds 12.510% of the product of the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 10.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (l) of Section 10.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (A) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 10.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (i) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (ii) the number of shares of Common Stock outstanding on such date fixed for determination and (B) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 10.4) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination.
(6f) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as amended upon determined by the expiration thereofBoard of Directors, whose determination shall be conclusive and described in a Board Resolution) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I1) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring concluded within the 12 months 365-day period preceding the expiration completion of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6f) has been made and (II2) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock made exclusively in cash within 12 months the 365-day period preceding the expiration completion of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5e) of this Section 10.4 has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SectionSection 10.4) as of the last time completion of such tender offer (the "Expiration TimeCompletion Date") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration TimeCompletion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration TimeCompletion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time Completion Date by a fraction (A) the numerator of which shall be equal to (i) the numerator shall be the product of (Ax) the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SectionSection 10.4) as of on the Expiration Time Completion Date multiplied by (By) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of on the Expiration Time Completion Date less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the combined tender and cash amount, and (B) the denominator of which shall be (A) equal to the product of (Ix) the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SectionSection 10.4) on the date as of the Expiration Time Completion Date multiplied by (IIy) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date as of the Expiration Time Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date (B) the combined tender and cash amountshares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7g) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 10.11 applies) shall be deemed to involve (a1) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4d) of this SectionSection 10.4), and (b2) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3c) of this SectionSection 10.4). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) h) For the purpose of any computation under paragraphs (2b), (4d), (5e) and or (6f) of this SectionSection 10.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Average Sales Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "exex date" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term "ex date," 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9i) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9i)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9i) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10j) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1a), (2b), (3c), (4d), (5e) and (6f) of this SectionSection 10.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of stock Common Stock or issuance of rights or warrants to purchase or subscribe for stock Common Stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event. To the extent permitted by applicable law, the Company from time to time may defer until increase the occurrence Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such event (i) issuing to increase would be in the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason best interests of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203Company, which determination shall be conclusive; provided, however, that such increase shall not be taken into account for purposes of determining whether the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shareswhich would otherwise be a Change in Control. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, Whenever the Conversion Rate (as so changed) shall be adjusted proportionately.is increased pursuant to t
Appears in 1 contract
Sources: Indenture (Cell Therapeutics Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property assets (including securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution in connection with any merger mergers or consolidation consolidations to which Section 1211 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directorsdirectors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section or cash distributed upon a merger or consolidation to which Section 12.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other all-cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section 12.4 has been made (the "combined cash and tender amount"), ) exceeds 12.510% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator of which shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 12.4) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this SectionSection 12.4). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and or (6) of this SectionSection 12.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, than the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " "'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this SectionSection 12.4, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. The Company shall have the power to resolve any ambiguity or correct any error in this paragraph (10) and its actions in so doing shall, absent manifest error, be final and conclusive.
(11) In any case in which Notwithstanding the foregoing provisions of this Section 1204 shall require that an Section, no adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment Conversion Rate shall be required by such event over and above to be made (a) upon the ADSs issuable upon such conversion before giving effect issuance of shares of Common Stock pursuant to such conversion rate adjustment and any present or future plan for the reinvestment of dividends or (iib) paying to such Holder any amount in cash in lieu because of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ tender or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence exchange offer of the event requiring such adjustmentcharacter described in Rule 13e-4(h)(5) under the Exchange Act or any successor rule thereto.
(12) The initial Conversion Rate reflects that as of To the date of this Indentureextent permitted by applicable law, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (as so changed20) days, the increase is irrevocable during such period, and the Board of Directors shall be adjusted proportionately.have made a determi
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Sources: Indenture (Bea Systems Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) adjusted from time to time by the Company as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1a) In case the Company shall hereafter pay a dividend or make a dividend or other distribution on any class of capital stock to all holders of the Company payable outstanding Common Stock in shares of Common Stock, the Conversion Rate shall be increased so that the same shall equal the rate determined by dividing the Conversion Rate in effect at the opening of business on the day date following the date fixed for the determination of shareholders stockholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by a fraction fraction,
(i) the numerator of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of the Common Stock outstanding at the close of business on the date fixed for such determination; and
(ii) the denominator of which shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes purpose of this paragraph (1a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common StockCompany. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. If any dividend or distribution of the type described in this Section 10.04(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(2b) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring within 45 60 days after the record date fixed for the determination of stockholders entitled to receive such rights, warrants rights or optionswarrants) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock Closing Sale Price on the date fixed for the determination of stockholders entitled to receive such rights, options rights or warrants, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by dividing the Conversion Rate in effect at the opening of business on the day following immediately prior to the date fixed for determination of stockholders entitled to receive such determination shall be increased by multiplying such Conversion Rate rights or warrants by a fraction fraction,
(i) the numerator of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of stockholders entitled to receive such determination rights or warrants plus the number of shares that the aggregate offering price of Common Stock the total number of shares so offered for subscription or would purchase and at such Closing Sale Price, and
(ii) the denominator of which shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for determination of stockholders entitled to receive such determination rights or warrants plus the total number of additional shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at purchase. Such adjustment shall be successively made whenever any such current market pricerights or warrants are issued, such increase to and shall become effective immediately after the opening of business on the day following the date fixed for determination of stockholders entitled to receive such determinationrights or warrants. For To the purposes extent that shares of this paragraph (2)Common Stock are not delivered after the expiration of such rights or warrants, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at any time outstanding shall not include shares held less than such Closing Sale Price, and in determining the treasury aggregate offering price of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of such shares of Common Stock. The , there shall be taken into account any consideration received by the Company shall not issue any rights, options for such rights or warrants in respect and any amount payable on exercise or conversion thereof, the value of shares such consideration, if other than cash, to be determined by the Board of Common Stock held in the treasury of the CompanyDirectors.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, and conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, Capital Stock of the Company or other property evidences of its indebtedness or assets (including securities, but excluding (i) any rights, options rights or warrants referred to in paragraph (2Section 10.04(b) of this Section, (ii) and excluding any dividend or distribution (x) paid exclusively in cashcash or (y) referred to in Section 10.04(a)) (any of the foregoing hereinafter in this Section 10.04(d) called the "Distributed Assets"), then, in each such case (unless the Company elects to reserve such Distributed Assets for distribution to the Holders upon the conversion of the Securities so that any such holder converting Securities will receive upon such conversion, in addition to the shares of Common Stock to which such holder is entitled, the amount and kind of such Distributed Assets which such holder would have received if such holder had converted its Securities into Common Stock immediately prior to the Record Date for such distribution of the Distributed Assets), the Conversion Rate shall be adjusted so that the same shall be equal to the rate determined by multiplying the Conversion Rate in effect on the Record Date with respect to such distribution by a fraction,
(i) the numerator of which shall be the Current Market Price per share of the Common Stock on such Record Date; and
(ii) the denominator of which shall be the Current Market Price per share of the Common Stock less the Fair Market Value (as determined by the Board of Directors and described in a resolution of the Board of Directors) on the Record Date of the portion of the Distributed Assets so distributed applicable to one share of Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following such Record Date; provided, however, that in the event (1) the then Fair Market Value (as so determined) of the portion of the Distributed Assets so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the Record Date or (2) the Current Market Price of Common Stock on the Record Date exceeds the then Fair Market Value (as so determined) of the portion of the Distributed Assets so distributed applicable to one share of Common Stock by less than $1.00, 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 Distributed Assets such holder would have received had such holder converted each Security on the Record Date. In the event that such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared. If the Board of Directors determines the Fair Market Value of any distribution for purposes of this Section 10.04(d) by reference to the actual or when issued trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the Current Market Price of the Common Stock. Rights or warrants distributed by the Company to all holders of Common Stock entitling the holders thereof to subscribe for or purchase shares of the Company's Capital Stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (i) are deemed to be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 10.04 (and no adjustment to the Conversion Rate under this Section 10.04 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 10.04(d). If any such right or warrant, including any such existing rights or warrants distributed prior to the date of this Indenture, are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 10.04 was made, (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued. No adjustment of the Conversion Rate shall be made pursuant to this Section 10.04(d) in respect of rights or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to holders of Securities upon conversion by such holders of Securities to Common Stock. For purposes of this Section 10.04(d) and Sections 10.04(a) and (b), any dividend or distribution referred to in paragraph which this Section 10.04(d) is applicable that also includes shares of Common Stock, or rights or warrants to subscribe for or purchase shares of Common Stock (or both), shall be deemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets or shares of capital stock other than such shares of Common Stock or rights or warrants (and any Conversion Rate adjustment required by this Section 10.04(d) with respect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any further Conversion Rate adjustment required by Sections 10.04(a) and (ivb) with respect to such dividend or distribution shall then be made), except (A) the Record Date of such dividend or distribution shall be substituted as "the date fixed for the determination of stockholders entitled to receive such dividend or other distribution", "the date fixed for the determination of stockholders entitled to receive such rights or warrants" and "the date fixed for such determination" within the meaning of Sections 10.04(a) and (b), and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed "outstanding at the close of business on the date fixed for such determination" within the meaning of Section 10.04(a). If any Distributed Assets requiring any adjustment pursuant to this Section 10.04(d) consists of the Capital Stock, or similar equity interests in, a Subsidiary or other business unit of the Company, the Conversion Rate in effect immediately before the close of business on the Record Date fixed for determination of shareholders entitled to receive the distribution shall instead be increased by multiplying the Conversion Rate then in effect by a fraction, (A) the numerator of which is the sum of (1) the average of the Closing Sale Prices of such distributed security for the 10 Trading Days commencing on and including the fifth Trading Day after the Ex-Dividend Date on the NYSE or such other national or regional exchange or market on which the securities are then listed or quoted, plus (2) the average of the Closing Sale Prices of the Common Stock over the same Trading Day period and (B) the denominator of which is such average of the Closing Sale Prices of the Common Stock.
(e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (an "Extraordinary Cash Dividend") (excluding any dividend or distribution in connection with any merger the liquidation, dissolution or consolidation to which Section 1211 applieswinding up of the Company, whether voluntary or involuntary), then, in such case, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed Record Date for the determination of stockholders entitled to receive such distribution Extraordinary Cash Dividend by a fraction fraction,
(i) the numerator of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) Current Market Price of the Common Stock on such Record Date plus the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share amount of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness cash so distributed applicable to one share of Common Stock, and
(ii) the denominator of which shall be such Current Market Price of the Common Stock, such adjustment to become be effective immediately prior to the opening of business on the day following the Reference Record Date.
(5) In case ; provided, however, that in the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends), distribute to all holders of its Common Stock cash in an aggregate amount that, combined together with (I) event the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the cash so distributed applicable to one share of Common Stock concluded within is equal to or greater than the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made (the "combined cash and tender amount"), exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (8) of this Section) Current Market Price of the Common Stock on the date for Record Date, in lieu of the determination of holders of shares of Common Stock entitled foregoing adjustment, adequate provision shall be made so that each Holder shall have the right to receive upon conversion the amount of cash such holder would have received had such holder converted each Security on the record date. In the event that such dividend or distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determinationis not so paid or made, the Conversion Rate shall again be adjusted so that the same shall equal the rate determined by multiplying to be the Conversion Rate that would then be in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive if such dividend or distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determinationhad not been declared.
(6f) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I) all Excess Payments payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.5% of the product of the current market price consideration per share of the Common Stock having a Fair Market Value (as determined as provided by the Board of Directors, whose determination shall be conclusive and described in paragraph (8) a resolution of this Sectionthe Board of Directors) that as of the last time (the "Expiration Time") tenders or exchanges could have been may be made pursuant to such tender or exchange offer (as it may be amended) times exceeds the number last reported Closing Sale Price of shares of the Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of Trading Day next succeeding the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to close of business on the date of the Expiration Time by a fraction of which fraction
(i) the numerator of which shall be the product sum of (Ax) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount.
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and (6) of this Section, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of the Common Stock on the Mexican Stock Exchange for 30 consecutive Trading Days commencing not more than 45 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.Fair Market V
Appears in 1 contract
Sources: Indenture (Financial Federal Corp)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders shareholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market pricepurchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution consideration distributed in connection with any merger or consolidation to which Section 1211 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders shareholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of shareholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. In the event the Company distributes shares of capital stock of a Subsidiary, the Conversion Rate will be adjusted, if at all, based on the market value of the Subsidiary stock so distributed relative to the market value of the Common Stock, as described below. The Board of Directors shall determine fair market values for the purposes of this Section 12.4(4), whose determination shall be conclusive and described in a Board Resolution filed with the Trustee; provided, however, that in respect of a dividend or other distribution of shares of capital stock of a class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company which has a Subsidiary Closing Price (a "Spin-off"), the fair market value of the securities to be distributed shall equal the average of the daily Subsidiary Closing Price of such securities for the 5 consecutive Trading Days commencing on and including the sixth Trading Day of such securities after the effectiveness of the Spin-off; provided, further, that in the event that an underwritten initial public offering of the securities in the Spin-off occurs simultaneously with the Spin-off, fair market value of the securities distributed in the Spin-off shall be the initial public offering price of such securities and the market price per share of the Common Stock shall mean the Closing Price Per Share for the Common Stock on the same Trading Day.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section or cash distributed upon a merger or consolidation to which Section 12.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other all-cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section 12.4 has been made (the "combined cash and tender amount"), ) exceeds 12.510% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders shareholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.510% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders shareholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock within 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator of which shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 12.4) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders shareholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this SectionSection 12.4). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and or (6) of this SectionSection 12.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 5 consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, than the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " "'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.
Appears in 1 contract
Sources: Indenture (Realnetworks Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market pricepurchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution consideration distributed in connection with any merger or consolidation to which Section 1211 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directorsdirectors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section or cash distributed upon a merger or consolidation to which Section 12.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other all-cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section 12.4 has been made (the "combined cash and tender amount"), ) exceeds 12.510% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.510% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock within 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator of which shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 12.4) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this SectionSection 12.4). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and or (6) of this SectionSection 12.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days -67- 73 before, and ending not later than, than the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " "'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this SectionSection 12.4, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. The Company shall have the power to resolve any ambiguity or correct any error in this paragraph (10) and its actions in so doing shall, absent manifest error, be final and conclusive.
(11) In any case in which Notwithstanding the foregoing provisions of this Section 1204 shall require that an Section, no adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment Conversion Rate shall be required by such event over and above to be made (a) upon the ADSs issuable upon such conversion before giving effect issuance of shares of Common Stock pursuant to such conversion rate adjustment and any present or future plan for the reinvestment of dividends or (iib) paying to such Holder any amount in cash in lieu because of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ tender or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence exchange offer of the event requiring such adjustmentcharacter described in Rule 13e-4(h)(5) under the Exchange Act or any successor rule thereto.
(12) The initial Conversion Rate reflects that as of To the date of this Indentureextent permitted by applicable law, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (as so changed20) shall be adjusted proportionately.days, the increas
Appears in 1 contract
Sources: Indenture (Ciena Corp)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class shares of capital stock of the Company Common Stock payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Company's Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market pricepurchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Company's Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), 86 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 will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtednessIndebtedness, shares of any class of capital stock, the Company's Capital Stock or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and 12.4, (iv) any distribution consideration distributed in connection with any merger or consolidation to which Section 1211 applies12.11 applies and (v) Capital Stock of the Company's Subsidiaries (the "Distributed Assets")), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Company's Board of Directorsdirectors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness Indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Company's Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section or cash distributed upon a merger or consolidation to which Section 12.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other all-cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months twelve-month period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Company's Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of other consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months twelve-month period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section 12.4 has been made (the "combined cash and tender amount"), ) exceeds 12.51.0% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.51.0% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Company's Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Company's Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of other consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months twelve month period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock within 12 months the twelve month period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.51.0% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock 88 outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator of which shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 12.4) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this SectionSection 12.4). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and or (6) of this SectionSection 12.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, than the earlier of the day in question and the day before the "exex date" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " "'ex' ex date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this SectionSection 12.4, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. The Company shall have the power to resolve any ambiguity or correct any error in this paragraph (10) and its actions in so doing shall, absent manifest error, be final and conclusive.
(11) In any case in which Notwithstanding the foregoing provisions of this Section 1204 shall require that an Section, no adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment Conversion Rate shall be required by such event over and above to be made (a) upon the ADSs issuable upon such conversion before giving effect issuance of shares of Common Stock pursuant to such conversion rate adjustment and any present or future plan for the reinvestment of dividends or (iib) paying to such Holder any amount in cash in lieu because of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ tender or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence exchange offer of the event requiring such adjustmentcharacter described in Rule 13e-4(h)(5) under the Exchange Act or any successor rule thereto.
(12) The initial Conversion Rate reflects that as of To the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.extent permit
Appears in 1 contract
Sources: Indenture (Reliant Resources Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution consideration distributed in connection with any merger or consolidation to which Section 1211 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. In the event the Company distributes shares of capital stock of a Subsidiary, the Conversion Rate will be adjusted, if at all, based on the market value of the Subsidiary stock so distributed relative to the market value of the Common Stock, as described below. The Board of Directors shall determine fair market values for the purposes of this Section 12.4(4), whose determination shall be conclusive and described in a Board Resolution filed with the Trustee; provided, however, that in respect of a dividend or other distribution of shares of capital stock of a class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company which has a Subsidiary Closing Price (a "Spin-off"), the fair market value of the securities to be distributed shall equal the average of the daily Subsidiary Closing Price of such securities for the five consecutive Trading Days commencing on and including the sixth Trading Day of such securities after the effectiveness of the Spin-off; provided, further, that in the event that an underwritten initial public offering of the securities in the Spin-off occurs simultaneously with the Spin-off, fair market value of the securities distributed in the Spin-off shall be the initial public offering price of such securities and the market price per share of the Common Stock shall mean the Closing Price Per Share for the Common Stock on the same Trading Day.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section or cash distributed upon a merger or consolidation to which Section 12.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other all-cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section 12.4 has been made (the "combined cash and tender amount"), ) exceeds 12.510% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.510% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock within 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator of which shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 12.4) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this SectionSection 12.4). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and or (6) of this SectionSection 12.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, than the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " "'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.ma
Appears in 1 contract
Sources: Indenture (Juniper Networks Inc)
Adjustment of Conversion Rate. (1) The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1i) In case the Company shall pay or make a dividend or other distribution on any class shares of capital stock of the Company Common Stock payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1i), 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 will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2ii) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or optionsin any case other than in connection with a Rights Plan) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price Current Market Price per share (determined as provided in paragraph (8) 3) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such Current Market Price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market pricepurchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2ii), 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 will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3iii) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4iv) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including securitiescash or assets or securities (other than rights pursuant to a Rights Plan)), but excluding (iA) any rights, options or warrants referred to in paragraph (21(ii) of this Section, (iiB) any dividend or distribution paid exclusively in cash, (iiiC) any dividend or distribution referred to in paragraph (11(i) of this Section and (ivD) any distribution consideration distributed in connection with any merger or consolidation to which Section 1211 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price Current Market Price per share (determined as provided in paragraph (8) 3) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such Current Market Price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution, or in the case of a Spin Off, immediately prior to the opening of business on the day following the last Trading Day of the Measurement Period. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. In the event the Company distributes shares of capital stock of a Subsidiary, the Conversion Rate will be adjusted, if at all, based on the market value of the Subsidiary stock so distributed relative to the market value of the Common Stock, as described below. The Board of Directors shall determine fair market values for the purposes of this Section 12.4(1)(iv), whose determination shall be conclusive and described in a Board Resolution filed with the Trustee; provided, however, that in respect of a dividend or other distribution of shares of capital stock of a class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company which has a Subsidiary Closing Price (a “Spin-off”), the fair market value of the securities to be distributed shall equal the average of the daily Subsidiary Closing Price of such securities for the five consecutive Trading Days commencing on and including the sixth Trading Day of such securities after the effectiveness of the Spin-off (the “Measurement Period”); provided, further, that in the event that an underwritten initial public offering of the securities in the Spin-off occurs simultaneously with the Spin-off, fair market value of the securities distributed in the Spin-off shall be the initial public offering price of such securities and the market price per share of the Common Stock shall mean the Closing Sale Price for the Common Stock on the same Trading Day.
(5v) In case the Company or any of its Subsidiaries shall make a tender or exchange offer for Common Stock (for the avoidance of doubt, excluding options, warrants, purchase rights and other securities convertible, exchangeable or exercisable for Common Stock), to the extent that the cash and value of any other consideration included in the payment per share of Common Stock in such offer exceeds the Closing Sale Price of the Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, and such tender or exchange offer shall expire, then, 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 such offer may have been amended), the Conversion Rate shall be increased so that the Conversion Rate shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to close of business on the Expiration Date by a fraction of which the numerator shall be the sum of (x) the aggregate consideration (determined as the sum of the aggregate amount of cash consideration and the aggregate fair market value (as determined 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 thereof) of any other consideration) payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the last time at which such tenders could have been made on the Expiration Date (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 (less any Purchased Shares and excluding any shares held in the treasury of the Company) at the Expiration Time and the Current Market Price per share of Common Stock (as determined in accordance with subsection (3) of this Section 12.4) on the Trading Day next succeeding the Expiration Date, and the denominator shall be the product of the number of shares of Common Stock outstanding (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Current Market Price per share of the Common Stock (as determined in accordance with subsection (3) of this Section 12.4) on the Trading Day next succeeding the Expiration Date, such increase to become effective immediately prior to the opening of business on the day following the Expiration Date. In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate which would have been in effect based upon the number of shares actually purchased. If the application of this Section 12.4(1)(v) to any tender offer would result in a decrease in the Conversion Rate, no adjustment shall be made for such tender offer under this Section 12.4(1)(v). For purposes of this Section 12.4(1)(v), the term “tender offer” shall mean and include both tender offers and exchange offers, all references to “purchases” of shares in tender offers (and all similar references) shall mean and include both the purchase of shares in tender offers and the acquisition of shares pursuant to exchange offers, and all references to “tendered shares” (and all similar references) shall mean and include shares tendered in both tender offers and exchange offers.
(vi) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute cash to all holders of its outstanding Common Stock (excluding any cash that is distributed as part of a distribution referred to in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (61(iv) of this Section has been made (the "combined or cash and tender amount"), exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (8) of this Sectiondistributed upon a merger or consolidation to which Section 12.11 applies) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal to the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (X) the numerator of which the numerator shall be equal to the current market price Current Market Price per share (determined as provided in paragraph (8) 3) of this Section) of the Common Stock on the date fixed for such determination plus the amount per share of such dividend or distribution and (Y) the denominator of which shall be equal to the current market price Current Market Price per share (determined as provided in paragraph (8) 3) of this SectionSection 12.4) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I) all Excess Payments payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.5% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount.
(72) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "“the date fixed for the determination of stockholders entitled to receive such distribution" ” and "“the date fixed for such determination" ” within the meaning of paragraph (41(iv) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "“the day upon which such subdivision becomes effective" ” or "“the day upon which such combination becomes effective", ,” as the case may be, and "“the day upon which such subdivision or combination becomes effective" ” within the meaning of paragraph 1(iii) of this Section 12.4).
(3) of this Section). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of (A) any computation under paragraphs (21(ii), (4), iv) or (5) and (6v) of this SectionSection 12.4, the current market price “Current Market Price” per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Sale Prices for the Common Stock on the Mexican Stock Exchange for 30 10 consecutive Trading Days selected by the Company commencing not more than 45 20 Trading Days before, and (I) in the case of paragraphs (1)(ii) or (iv) of this Section 12.4, ending not later than, the earlier of the day in question date fixed for determination and the day before the "“ex" date -date” with respect to the issuance or distribution requiring such computation or (II) in the case of paragraph (1)(v) of this Section 12.4, ending not later than, the Expiration Date with respect to the tender offer requiring such computation; and (B) any computation under paragraph (1)(vi) of this Section 12.4, the “Current Market Price” per share of Common Stock on any date shall be calculated by the Company and be the average of the daily Closing Sale Prices for the first 10 consecutive Trading Days from and including the first “ex-date” with respect to the dividend or other distribution requiring such computation. For purposes of this paragraph, the term " '“ex' -date", ,” when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(94) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent U.S. $0.01 or to the nearest one-one-hundredth (1/100th) of a share, as the case may be.
(105) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.
Appears in 1 contract
Sources: Indenture (Epix Medical Inc)
Adjustment of Conversion Rate. The Conversion Rate applicable to any series of Securities shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1a) In case at any time during which Securities of any series are Outstanding the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, such Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates certificates, if any, issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2b) Subject to the last sentence In case at any time during which Securities of paragraph (7) of this Section, in case any series are Outstanding the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) options to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 1504) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options warrants or warrantsoptions, the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2b), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall will include shares issuable in respect of scrip certificates certificates, if any, issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options rights or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) In case at any time during which Securities of any series are Outstanding the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the such Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, conversely in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) Subject to the last sentence In case at any time during which Securities of paragraph (7) of this Section, in case any series are Outstanding the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property assets (including securities, but excluding (i) any rights, warrants or options or warrants referred to in paragraph (2b) of this SectionSection 1504, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1a) of this Section 1504 and (iv) any distribution in connection with any merger or consolidation to which Section 1211 1511 applies), the such Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the dividing such Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 1504) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the "Reference Date"Board of Directors, whose determination shall be conclusive, and described in a Board Resolution filed with the Trustee) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be the such current market price per share of Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such distribution.
(e) In case at any time during which Securities of any series are Outstanding the Company shall, by dividend or otherwise, make a distribution to all holders of its Common Stock on consisting exclusively of cash (excluding any cash that is distributed upon a merger or consolidation or a sale or transfer of all or substantially all of the Reference Date less assets of the then Company to which Section 1511 applies or as part of a distribution referred to in paragraph (d) of this Section 1504) in an aggregate amount that, combined together with (1) the aggregate amount of any other distributions to all holders of its Common Stock made exclusively in cash within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (e) has been made and (2) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Date.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends), distribute to all holders of its Common Stock cash in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6f) of this Section 1504 has been made (the "combined cash and tender amount")made, exceeds 12.5% ten percent (10%) of the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the such Conversion Rate shall be adjusted increased so that the same shall equal the rate determined by multiplying the dividing such Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 1504) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (h) of this Section 1504) of the Common Stock on such date for determination.
(6f) In case at any time during which Securities of any series are Outstanding a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) that combined together with (I1) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender or exchange offer, of consideration payable in respect of any other tender or exchange offer offer, by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment adjustment, pursuant to this paragraph (6f) has been made and (II2) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5e) of this Section 1504 has been made (the "combined tender and cash amount") exceeds 12.5% ten percent (10%) of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SectionSection 1504) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of on the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the such Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the dividing such Conversion Rate immediately prior to the close of business on the date of the Expiration Time by a fraction of which (i) the numerator of which shall be equal to (x) the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SectionSection 1504) as on the date of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) on the date of the Expiration Time less (y) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (x) the current market price per share of the Common Stock (determined as provided in paragraph (h) of this Section 1504) as of the Expiration Time multiplied by (y) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration TimeTime (the shares deemed so accepted up to any such maximum, and (ii) being referred to as the denominator shall be (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount"Purchased Shares").
(7g) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 1511 applies) shall be deemed to involve (a1) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4d) of this SectionSection 1504), and (b2) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", ," as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3c) of this SectionSection 1504). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) h) For the purpose of any computation under paragraphs (2b), (4d), (5e) and or (6f) of this SectionSection 1504, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 ten (10) Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " '"`ex' date", ," when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way on the applicable securities exchange or in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9i) No adjustment in the such Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9i)) would require an increase or decrease of at least one percent (1%) in such rate; provided, however, that any adjustments which by reason of this paragraph (9i) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10j) The Company may make such increases in the such Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1a), (2b), (3c), (4d), (5e) and (6f) of this SectionSection 1504, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for United States federal income tax purposespurposes or for any other reasons. The Company shall have the power to resolve any ambiguity or correct any error in this paragraph (j) and its actions in so doing, absent manifest error, shall be final and conclusive.
(11k) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an eventTo the extent permitted by applicable law, the Company from time to time may defer until increase the occurrence Conversion Rate applicable to any series of Securities by any amount for any period of time if the period is at least twenty (20) days, the increase is irrevocable during such event (i) issuing period, and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive. Whenever any Conversion Rate is increased pursuant to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; providedpreceding sentence, however, that the Company shall deliver give notice of the increase to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right the relevant Holders in the manner provided in Section 106 at least fifteen (15) days prior to receive such additional ADSsthe date the increased Conversion Rate takes effect, and such cash, upon notice shall state the occurrence of the event requiring such adjustment.
(12) The initial increased Conversion Rate reflects that as of and the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether period during which it will be in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionatelyeffect.
Appears in 1 contract
Sources: Indenture (Infocure Corp)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market pricepurchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution consideration distributed in connection with any merger or consolidation to which Section 1211 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directorsdirectors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section or cash distributed upon a merger or consolidation to which Section 12.11 applies) in an aggregate amount that, combined together with (Ii) the aggregate amount of any other all-cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (IIii) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section 12.4 has been made (the "combined cash and tender amount"), ) exceeds 12.510% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.510% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (Ii) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (IIii) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock within 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator of which shall be equal to (A) the product of (i) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 12.4) on the date of the Expiration Time multiplied by (ii) the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration TimeTime (the shares deemed so accepted up to any such maximum, and (ii) being referred to as the denominator shall be (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount"Purchased Shares").
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", ," as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this SectionSection 12.4). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and or (6) of this SectionSection 12.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, than the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " "'ex' date", ," when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this SectionSection 12.4, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. The Company shall have the power to resolve any ambiguity or correct any error in this paragraph (10) and its actions in so doing shall, absent manifest error, be final and conclusive.
(11) In any case in which Notwithstanding the foregoing provisions of this Section 1204 shall require that an Section, no adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment Conversion Rate shall be required by such event over and above to be made (a) upon the ADSs issuable upon such conversion before giving effect issuance of shares of Common Stock pursuant to such conversion rate adjustment and any present or future plan for the reinvestment of dividends or (iib) paying to such Holder any amount in cash in lieu because of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ tender or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence exchange offer of the event requiring such adjustmentcharacter described in Rule 13e-4(h)(5) under the Exchange Act or any successor rule thereto.
(12) The initial Conversion Rate reflects that as of To the date of this Indentureextent permitted by applicable law, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (as so changed20) shall be adjusted proportionately.days, the increase is irr
Appears in 1 contract
Sources: Indenture (PMC Sierra Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SectionSection and any other rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution in connection with any merger mergers or consolidation consolidations to which Section 1211 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directorsdirectors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section or cash distributed upon a merger or consolidation to which Section 12.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other all-cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section 12.4 has been made (the "combined cash and tender amount"), ) exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I) all Excess Payments payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.5% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount.
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and (6) of this Section, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of the Common Stock on the Mexican Stock Exchange for 30 consecutive Trading Days commencing not more than 45 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.
Appears in 1 contract
Sources: Indenture (Analog Devices Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market pricepurchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution consideration distributed in connection with any merger or consolidation to which Section 1211 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directorsdirectors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section or cash distributed upon a merger or consolidation to which Section 12.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other all-cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section 12.4 has been made (the "combined cash and tender amount"), ) exceeds 12.510% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.510% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock within 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator of which shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 12.4) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this SectionSection 12.4). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and or (6) of this SectionSection 12.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, than the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " '"`ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this SectionSection 12.4, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. The Company shall have the power to resolve any ambiguity or correct any error in this paragraph (10) and its actions in so doing shall, absent manifest error, be final and conclusive.
(11) In any case in which Notwithstanding the foregoing provisions of this Section 1204 shall require that an Section, no adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment Conversion Rate shall be required by such event over and above to be made (a) upon the ADSs issuable upon such conversion before giving effect issuance of shares of Common Stock pursuant to such conversion rate adjustment and any present or future plan for the reinvestment of dividends or (iib) paying to such Holder any amount in cash in lieu because of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ tender or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence exchange offer of the event requiring such adjustmentcharacter described in Rule 13e-4(h)(5) under the Exchange Act or any successor rule thereto.
(12) The initial Conversion Rate reflects that as of To the date of this Indentureextent permitted by applicable law, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (as so changed20) shall be adjusted proportionately.days, the increase is irr
Appears in 1 contract
Sources: Indenture (Abx Air Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 10.04) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Note into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SectionSection and any other rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Note into shares of Common Stock without any action required by the Company or any other Person, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution in connection with any merger mergers or consolidation consolidations to which Section 1211 10.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 10.04) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section or cash distributed upon a merger or consolidation to which Section 10.11 applies) in an aggregate amount that, combined together with (Ii) the aggregate amount of any other all-cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph paragraphs (5) and (6) has been made and (IIii) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph paragraphs (5) and (6) of this Section 12.4 has been made (the "combined cash and tender amount"), ) exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSection 10.04) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 10.04) of the Common Stock on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (Ii) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph paragraphs (5) and (6) has been made and (IIii) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock within 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph paragraphs (5) and (6) of this Section has been made (the "combined tender and cash amount") exceeds 12.5% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 10.04) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator of which shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 10.04) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 10.04) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 10.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and (6) of this Section, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of the Common Stock on the Mexican Stock Exchange for 30 consecutive Trading Days commencing not more than 45 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.such
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any follows (provided that the Company shall not be required to make any adjustment to the Conversion Rate until the cumulative required adjustments amount to 1.0% or more of the Conversion Rate, and any adjustment that would otherwise be required to be made but for such 1.0% threshold shall take be carried forward and taken into account the number of shares of Common Stock represented by each ADS before and after each such in any subsequent adjustment.):
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common StockOrdinary Shares, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock Ordinary Shares outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective (subject to paragraph (12) of this Section 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1), the number of shares of Common Stock Ordinary Shares at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common StockOrdinary Shares. The Company shall will not pay any dividend or make any distribution on shares of Common Stock Ordinary Shares held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock Ordinary Shares entitling them to subscribe for or purchase shares of Common Stock Ordinary Shares at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 11.4) of the Common Stock Ordinary Shares on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants (1) that by their terms will also be issued to any Holder upon conversion of a Security into Ordinary Shares without any action required by the Company or any other Person or (2) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock Ordinary Shares outstanding at the close of business on the date fixed for such determination plus the number of shares Ordinary Shares which the aggregate of Common Stock the offering price of the total number of Ordinary Shares so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock Ordinary Shares 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 of the total number of shares of Common Stock Ordinary Shares so offered for subscription or purchase would purchase at such current market pricepurchase, such increase to become effective (subject to paragraph (12) of this Section 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2), the number of shares of Common Stock Ordinary Shares at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. Ordinary Shares, The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock Ordinary Shares held in the treasury of the Company.
(3) In case outstanding shares of Common Stock Ordinary Shares shall be subdivided into a greater number of shares of Common StockOrdinary Shares, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock Ordinary Shares shall each be combined into a smaller number of shares of Common StockOrdinary Shares, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock Ordinary Shares evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i1) any rights, options or warrants referred to in paragraph (2) of this SectionSection 11.4 and the distribution of rights to ail holders of Ordinary Shares pursuant to the adoption of a stockholders' rights plan or the detachment of such rights under the terms of such stockholders' rights plan, (ii2) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (iii5) and (6) of this Section 11.4, (3) any dividend or distribution referred to in paragraph (1) of this Section 11.4 and (iv4) any distribution in connection with any merger or consolidation to which Section 1211 11.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 11.4) of the Common Stock Ordinary Shares on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the TrusteeResolution) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common StockOrdinary Shares and the denominator shall be such current market price per share of the Ordinary Shares, such adjustment to become effective (subject to paragraph (12) of this Section 11.4) immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. In addition, if the Company implements a rights plan ("RIGHTS PLAN"), the Company will provide under such Rights Plan that the Holders of the Securities will receive, in addition to the Ordinary Shares, the rights under the Rights Plan (whether or not the rights under the Rights Plan have separated from the Ordinary Shares at the time of conversion), subject to any limitations set forth in the Rights Plan.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock Ordinary Shares cash (excluding cash portions of distribution referred to in an aggregate amount thatSection 11.4(4) and any cash that is distributed upon a merger or consolidation to which Section 11.11 applies), combined together with (I) the aggregate Conversion Price shall be reduced by the amount of any other such cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made (the "combined cash and tender amount"), exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), thenOrdinary Share, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determinationaccordingly.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock Ordinary Shares shall expire and such tender or exchange offer be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as amended upon determined by the expiration thereofBoard of Directors, whose determination shall be conclusive and described in a Board Resolution) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I1) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring Ordinary Shares concluded within the 12 months 365-day period preceding the expiration completion of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II2) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock Ordinary Shares made exclusively in cash within 12 months the 365-day period preceding the expiration completion of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section 11.4 has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock Ordinary Shares (determined as provided in paragraph (8) of this SectionSection 11.4) as of the last time completion of such tender offer (the "Expiration TimeCOMPLETION DATE") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock Ordinary Shares outstanding (including any tendered or exchanged shares) as of the Expiration TimeCompletion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration TimeCompletion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time Completion Date by a fraction (A) the numerator of which shall be equal to (i) the numerator shall be the product of (Ax) the current market price per share of the Common Stock Ordinary Shares (determined as provided in paragraph (8) of this SectionSection 11.4) as of on the Expiration Time Completion Date multiplied by (y) the number of Ordinary Shares outstanding (including any tendered shares) on the Completion Date less (ii) the combined tender and cash amount, and (B) the number denominator of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator which shall be (A) equal to the product of (Ix) the current market price per share of the Common Stock Ordinary Shares (determined as provided in paragraph (8) of this SectionSection 11.4) on the date as of the Expiration Time Completion Date multiplied by (IIy) the number of shares of Common Stock Ordinary Shares outstanding (including any tendered or exchanged shares) on the date as of the Expiration Time Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date (B) the combined tender and cash amountshares deemed so accepted up to any such maximum, being referred to as the "PURCHASED SHARES").
(7) The reclassification of Common Stock Ordinary Shares into securities including other than Common Stock Ordinary Shares (other than any reclassification upon a consolidation or merger to which Section 1211 11.11 applies) shall be deemed to involve (a1) a distribution of such securities other than Common Stock Ordinary Shares to all holders of Common Stock Ordinary Shares (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this SectionSection 11.4), and (b2) a subdivision or combination, as the case may be, of the number of shares of Common Stock Ordinary Shares outstanding immediately prior to such reclassification into the number of shares of Common Stock Ordinary Shares outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", ," as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this SectionSection 11.4). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and or (6) of this SectionSection 11.4, the current market price per share of Common Stock Ordinary Shares on any date shall be calculated by the Company and be deemed to be the average of Volume Weighted Average Price for the last reported sale price of the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "exex date" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term "ex date," 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock Ordinary Shares trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; providedPROVIDED, howeverHOWEVER, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article 11 shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5), (6) and (614) of this SectionSection 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock Ordinary Shares resulting from any dividend or distribution of stock Ordinary Shares or issuance of rights or warrants to purchase or subscribe for stock Ordinary Shares or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Volume Weighted Average Price of the Ordinary Shares exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this Section 11.4, no adjustment of the Conversion Rate shall be required to be made (1) upon the issuance of Ordinary Shares pursuant to any present or future plan for the reinvestment of dividends, (2) because of a tender or exchange offer of the character described in Rule 13e-4(h)(5) under the Exchange Act or any successor rule thereto or (3) as a result of a rights plan or poison pill implemented by the Company.
(12) In any case in which this Section 1204 11.4 shall require that an adjustment shall become effective be made immediately after following a determination date for an eventrecord date, the Company may elect to defer until the occurrence effectiveness of such adjustment (but in no event (i) issuing until a date later than the effective time of the event giving rise to such adjustment), in which case the Holder of Company shall, with respect to any Convertible Security converted after such record date and on and before such adjustment shall have become effective (1) defer paying any cash payment pursuant to Section 11.3 hereof or issuing to the occurrence Holder of such event Security the additional ADSs number of Ordinary Shares issuable upon such conversion by reason in excess of the conversion rate adjustment required by such event over and above number of Ordinary Shares issuable thereupon only on the ADSs issuable upon such conversion before giving effect basis of the Conversion Rate prior to such conversion rate adjustment adjustment, and (ii2) paying not later than five Business Days after such adjustment shall have become effective, pay to such Holder any amount in the appropriate cash in lieu of a fractional ADS payment pursuant to Section 1203; provided11.3 hereof and issue to such Holder the additional Ordinary Shares issuable on such conversion. Notwithstanding the foregoing, however, no adjustment of the Conversion Rate shall be made if the event giving rise to such adjustment does not occur.
(13) In the event that the Company distributes rights or warrants (other than those referred to in paragraph (2) above) pro rata to holders of Ordinary Shares, so long as any such rights or warrants have not expired or been redeemed by the Company, the Company shall deliver to such make proper provision so that the Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right of any Security surrendered for conversion will be entitled to receive upon such additional ADSsconversion, and such cash, in addition to the Ordinary Shares issuable upon the occurrence conversion of the event requiring Securities (the "CONVERSION SHARES"), a number of rights and warrants to be determined as follows: (i) if such adjustment.
(12) The initial Conversion Rate reflects that as of conversion occurs on or prior to the date for the distribution to the holders of this Indenture, each ADS represents 20 L Shares. If the number rights or warrants of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.separate certificates evidenc
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company Common Stock payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property assets (including securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution in connection with any merger mergers or consolidation consolidations to which Section 1211 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directorsdirectors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section or cash distributed upon a merger or consolidation to which Section 12.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other all-cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of other consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section 12.4 has been made (the "combined cash and tender amount"), ) exceeds 12.510% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator of which shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 12.4) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this SectionSection 12.4). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and or (6) of this SectionSection 12.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, than the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " "'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this SectionSection 12.4, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. The Company shall have the power to resolve any ambiguity or correct any error in this paragraph (10) and its actions in so doing shall, absent manifest error, be final and conclusive.
(11) In any case in which Notwithstanding the foregoing provisions of this Section 1204 shall require that an Section, no adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment Conversion Rate shall be required by such event over and above to be made (a) upon the ADSs issuable upon such conversion before giving effect issuance of shares of Common Stock pursuant to such conversion rate adjustment and any present or future plan for the reinvestment of dividends or (iib) paying to such Holder any amount in cash in lieu because of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ tender or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence exchange offer of the event requiring such adjustmentcharacter described in Rule 13e-4(h)(5) under the Exchange Act or any successor rule thereto.
(12) The initial Conversion Rate reflects that as of To the date of this Indentureextent permitted by applicable law, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (as so changed20) days, the increase is irrevocable during such period, and the Board of Directors shall be adjusted proportionately.have made a de
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) adjustment from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock Capital Stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after prior to the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) 9 of this SectionSection 14.4, in case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into Common Stock without any action required by the Company or any other person) entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) 10) of this SectionSection 14.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants, the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice per share and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after prior to the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution in connection with any merger or consolidation to which Section 1211 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Date.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends), distribute to all holders of its Common Stock cash in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made (the "combined cash and tender amount"), exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I) all Excess Payments payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.5% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount.
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and (6) of this Section, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of the Common Stock on the Mexican Stock Exchange for 30 consecutive Trading Days commencing not more than 45 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution consideration distributed in connection with any merger or consolidation to which Section 1211 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directorsdirectors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made (the "combined cash and tender amount"), exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I) all Excess Payments payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of excluding any cash distribution (other than regular or quarterly cash dividends) to all holders that is distributed as part of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.5% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount.
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock referred to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of in paragraph (4) of this Section or cash distributed upon a merger or consolidation to which Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and (6) of this Section, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of the Common Stock on the Mexican Stock Exchange for 30 consecutive Trading Days commencing not more than 45 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.
Appears in 1 contract
Sources: Indenture (Redback Networks Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective (subject to paragraph (l) of this Section 10.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2b) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 10.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants (1) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (2) that are only exercisable upon the occurrence of a specified triggering event and such triggering event has not occurred), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (l) of this Section 10.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2b), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i1) any rights, options or warrants referred to in paragraph (2b) of this SectionSection 10.4, (ii2) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (iiie) and (f) of this Section 10.4, (3) any dividend or distribution referred to in paragraph (1a) of this Section 10.4 and (iv4) any distribution in connection with any merger or consolidation to which Section 1211 10.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 10.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the TrusteeResolution) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective (subject to paragraph (l) of this Section 10.4) immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution.
(5e) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding cash portions of distribution referred to in Section 10.4(d) -61- and any cash that is distributed upon a merger or consolidation to which Section 10.11 applies) in an aggregate amount that, combined together with (I1) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5e) has been made and (II2) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries Subsidiary for all or any portion of the Common Stock concluded within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6f) of this Section 10.4 has been made (the "combined cash and tender amountCOMBINED CASH AND TENDER AMOUNT"), ) exceeds 12.510% of the product of the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 10.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market priceAGGREGATE CURRENT MARKET PRICE"), then, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (l) of Section 10.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (A) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 10.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (i) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (ii) the number of shares of Common Stock outstanding on such date fixed for determination and (B) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 10.4) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination.
(6f) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as amended upon determined by the expiration thereofBoard of Directors, whose determination shall be conclusive and described in a Board Resolution) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I1) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring concluded within the 12 months 365-day period preceding the expiration completion of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6f) has been made and (II2) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock made exclusively in cash within 12 months the 365-day period preceding the expiration completion of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5e) of this Section 10.4 has been made (the "combined tender and cash amountCOMBINED TENDER AND CASH AMOUNT") exceeds 12.510% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SectionSection 10.4) as of the last time completion of such tender offer (the "Expiration TimeCOMPLETION DATE") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration TimeCompletion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration TimeCompletion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time Completion Date by a fraction (A) the numerator of which shall be equal to (i) the numerator shall be the product of (Ax) the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SectionSection 10.4) as of on the Expiration Time Completion Date multiplied by (By) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of on the Expiration Time Completion Date less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the combined tender and cash amount, and (B) the denominator of which shall be (A) equal to the product of (Ix) the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SectionSection 10.4) on the date as of the Expiration Time Completion Date multiplied by (IIy) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date as of the Expiration Time Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date (B) the combined tender and cash amountshares deemed so accepted up to any such maximum, being referred to as the "PURCHASED SHARES").
(7g) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 10.11 applies) shall be deemed to involve (a1) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4d) of this SectionSection 10.4), and (b2) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3c) of this SectionSection 10.4). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) h) For the purpose of any computation under paragraphs (2b), (4d), (5e) and or (6f) of this SectionSection 10.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Average Sales Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "exex date" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term "ex date," 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9i) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9i)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9i) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10j) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1a), (2b), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.,
Appears in 1 contract
Sources: Indenture (Asm International N V)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 11.4) of the ------------ Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution in connection with any merger or consolidation to which Section 1211 11.11 ------------- applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 11.4) of the Common Stock on the date fixed for such ------------ determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which Section 11.11 applies or as part of a ------------- distribution referred to in paragraph (4) of this Section) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made (the "combined cash and tender amount"), exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I) all Excess Payments payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.5% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount.
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and (6) of this Section, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of the Common Stock on the Mexican Stock Exchange for 30 consecutive Trading Days commencing not more than 45 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.this
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market pricepurchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, other than those referred to in paragraphs 5 and 6 below, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution consideration distributed in connection with any merger or consolidation to which Section 1211 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding cash distributed upon a merger or consolidation to which Section 12.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other all-cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section 12.4 has been made (the "combined cash and tender amount"), ) exceeds 12.510% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.510% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock within 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator of which shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 12.4) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", ," as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this SectionSection 12.4). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and or (6) of this SectionSection 12.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, than the earlier of the day in question and the day before the "exex date" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term "ex date," 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this SectionSection 12.4, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. The Company shall have the power to resolve any ambiguity or correct any error in this paragraph (10) and its actions in so doing shall, absent manifest error, be final and conclusive.
(11) In any case in which Notwithstanding the foregoing provisions of this Section 1204 shall require that an Section, no adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment Conversion Rate shall be required by such event over and above to be made (a) upon the ADSs issuable upon such conversion before giving effect issuance of shares of Common Stock pursuant to such conversion rate adjustment and any present or future plan for the reinvestment of dividends or (iib) paying to such Holder any amount in cash in lieu because of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ tender or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence exchange offer of the event requiring such adjustmentcharacter described in Rule 13e-4(h)(5) under the Exchange Act or any successor rule thereto.
(12) The initial Conversion Rate reflects that as of To the date of this Indentureextent permitted by applicable law, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (as so changed20) days, the increase is irrevocable during such period, and the Board of Directors shall be adjusted proportionately.
Appears in 1 contract
Sources: Indenture (Teradyne Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution in connection with any merger mergers or consolidation consolidations to which Section 1211 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directorsdirectors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section or cash distributed upon a merger or consolidation to which Section 12.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other all-cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section 12.4 has been made (the "combined cash and tender amount"), ) exceeds 12.510% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock within 12 months 365- day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator of which shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 12.4) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this SectionSection 12.4). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and or (6) of this SectionSection 12.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, than the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " '"`ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades the regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this SectionSection 12.4, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. The Company shall have the power to resolve any ambiguity or correct any error in this paragraph (10) and its actions in so doing shall, absent manifest error, be final and conclusive.
(11) In any case in which Notwithstanding the foregoing provisions of this Section 1204 shall require that an Section, no adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment Conversion Rate shall be required by such event over and above to be made (a) upon the ADSs issuable upon such conversion before giving effect issuance of shares of Common Stock pursuant to such conversion rate adjustment and any present or future plan for the reinvestment of dividends or (iib) paying to such Holder any amount in cash in lieu because of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ tender or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence exchange offer of the event requiring such adjustmentcharacter described in Rule 13e-4(h)(5) under the Exchange Act or any successor rule thereto.
(12) The initial Conversion Rate reflects that as of To the date of this Indentureextent permitted by applicable law, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (as so changed20) shall be adjusted proportionately.days, the increase is irrevocable during such period, and the
Appears in 1 contract
Sources: Indenture (Oni Systems Corp)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing adjustments, calculated by the right to receive shares of Common Stock may become issuable) Company, from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening subdivide outstanding shares of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying such Conversion Rate by Common Stock into a fraction of which the numerator shall be the sum of the greater number of shares of Common Stock outstanding at or combine the close of business on the date fixed for such determination and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants, the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater lesser number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which Record Date fixed for the determination of stockholders entitled to receive such dividend or other distribution, or the Record Date for such subdivision becomes effective or combination, as the case may be, shall be proportionately increasedadjusted based on the following formula:
1 1 OS CR = CR x ----- 0 OS 0 where, andCR = the Conversion Rate in effect at the close of business 0 on the Record Date 1 CR = the Conversion Rate in effect immediately after the Record Date OS = the number of shares of Common Stock outstanding at the 0 close of business on the Record Date 1 OS = the number of shares of Common Stock that would be outstanding immediately after such event If, converselyafter any such Record Date, any dividend or distribution is not in case fact paid or the outstanding shares of Common Stock are not subdivided or combined, as the case may be, the Conversion Rate shall each be combined into a smaller number immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, or subdivide or combine the outstanding shares of Common Stock, as the case may be, to the Conversion Rate that would have been in effect if such Record Date had not been fixed.
(b) In case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them to subscribe for or purchase shares of Common Stock for a period expiring 45 days or less from the date of issuance of such rights or warrants at a price per share less than the Current Market Price of the Common Stock (as defined in (h)), on the business day immediately preceding the announcement of such issuance, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution in connection with any merger or consolidation to which Section 1211 applies), the Conversion Rate Record Date shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business based on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Date.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends), distribute to all holders of its Common Stock cash in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made (the "combined cash and tender amount"), exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I) all Excess Payments payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.5% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount.
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and (6) of this Section, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of the Common Stock on the Mexican Stock Exchange for 30 consecutive Trading Days commencing not more than 45 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.formula:
Appears in 1 contract
Sources: Indenture (Dov Pharmaceutical Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company Corporation shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying such dividing the Conversion Rate in effect immediately prior to such date by a fraction fraction:
(i) the numerator of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination, determination and
(ii) the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution. Such increase to will become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company Corporation but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall Corporation will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the CompanyCorporation.
(2) Subject to the last sentence of paragraph (7) of this SectionSection 2.4, in case the Company Corporation shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 2.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Securityholder upon conversion of a Convertible Security into shares of Common Stock without any action required by the Corporation or any other person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying such dividing the Conversion Rate in effect immediately prior to such date by a fraction fraction:
(i) the numerator of which will be the numerator number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and
(ii) the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price, such purchase. Such increase to will become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company Corporation but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall Corporation will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the CompanyCorporation.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this SectionSection 2.4, in case the Company Corporation shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stockstock or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Securityholder upon conversion of a Convertible Security into shares of Common Stock without any action required by the Corporation or any other person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, other than those referred to in paragraphs (5) and (6) below, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution consideration distributed in connection with any merger or consolidation to which Section 1211 2.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction fraction:
(i) the numerator of which the numerator shall will be the current market price per share (determined as provided in paragraph (8) of this SectionSection 2.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and
(ii) the denominator shall be such current market price per share of the Common Stock, such . Such adjustment to will become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date that the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company Corporation shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding cash distributed upon a merger or consolidation to which Section 2.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other all-cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) or paragraph (6) of this Section 2.4 has been made and (II) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of any non-cash consideration payable in respect of any tender or exchange offer by the Company Corporation or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section 2.4 has been made (the "combined cash and tender amount"), ) exceeds 12.510% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSection 2.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction fraction:
(i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this SectionSection 2.4) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.510% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and
(ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 2.4) of the Common Stock on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company Corporation or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of any non-cash consideration payable in respect of any other tender or exchange offer by the Company Corporation or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) or paragraph (5) of this Section 2.4 has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock within 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section 2.4 has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 2.4) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to the close of business on the date of the Expiration Time by a fraction of which fraction
(i) the numerator of which shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 2.4) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount, and
(ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 2.4) on the date of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 2.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this SectionSection 2.4), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", ," as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this SectionSection 2.4). Rights Rights, options or warrants issued by the Company Corporation to all holders of its Common Stock entitling the holders thereof to subscribe for or purchase shares of Common Stockcapital stock of the Corporation, which rights rights, options or warrants (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 Stockshares of capital stock, in each case in clauses (i) through (iii) until the occurrences occurrence of a specified event or events ("Trigger Event"), shall for the purposes of this Section 2.4 not be deemed issued or distributed until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and or (6) of this SectionSection 2.4, the current market price per share of Common Stock on any date shall be calculated by the Company Corporation and be deemed to be the average of the last reported sale price of daily Closing Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Corporation commencing not more than 45 10 Trading Days before, and ending not later than, than the earlier of the day in question and the day before the "exex date" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term "ex date," 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.
Appears in 1 contract
Sources: First Supplemental Indenture (Constellation Energy Group Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 10.04) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Note into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this SectionSection and any other rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Note into shares of Common Stock without any action required by the Company or any other Person, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution in connection with any merger mergers or consolidation consolidations to which Section 1211 10.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 10.04) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section or cash distributed upon a merger or consolidation to which Section 10.11 applies) in an aggregate amount that, combined together with (Ii) the aggregate amount of any other all-cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph paragraphs (5) and (6) has been made and (IIii) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph paragraphs (5) and (6) of this Section 10.04 has been made (the "combined cash and tender amount"), ) exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSection 10.04) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 10.04) of the Common Stock on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (Ii) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph paragraphs (5) and (6) has been made and (IIii) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock within 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph paragraphs (5) and (6) of this Section has been made (the "combined tender and cash amount") exceeds 12.5% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 10.04) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator of which shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 10.04) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 10.04) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 10.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this SectionSection 10.04). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs paragraph (2), (4), (5) and or (6) of this SectionSection 10.04, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Price Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, than the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " '"`ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades the regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series Notes or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this SectionSection 10.04, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. The Company shall have the power to resolve any ambiguity or correct any error in this paragraph (10) and its actions in so doing shall, absent manifest error, be final and conclusive.
(11) In any case in which Notwithstanding the foregoing provisions of this Section 1204 shall require that an Section, no adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment Conversion Rate shall be required by such event over and above to be made (a) upon the ADSs issuable upon such conversion before giving effect issuance of shares of Common Stock pursuant to such conversion rate adjustment and any present or future plan for the reinvestment of dividends or (iib) paying to such Holder any amount in cash in lieu because of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ tender or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence exchange offer of the event requiring such adjustmentcharacter described in Rule 13e-4(h)(5) under the Exchange Act or any successor rule thereto.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.To
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate applicable to any series of Securities shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1a) In case at any time during which Securities of any series are Outstanding the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, such Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates certificates, if any, issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2b) Subject to the last sentence In case at any time during which Securities of paragraph (7) of this Section, in case any series are Outstanding the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) options to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 1405) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options warrants or warrantsoptions, the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution in connection with any merger or consolidation to which Section 1211 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Date.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends), distribute to all holders of its Common Stock cash in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made (the "combined cash and tender amount"), exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I) all Excess Payments payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.5% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount.
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and (6) of this Section, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of the Common Stock on the Mexican Stock Exchange for 30 consecutive Trading Days commencing not more than 45 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.
Appears in 1 contract
Sources: Indenture (King Pharmaceuticals Inc)
Adjustment of Conversion Rate. (1) The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1i) In case the Company shall pay or make a dividend or other distribution on any class shares of capital stock of the Company Common Stock payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1i), 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 will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2ii) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or optionsin any case other than in connection with a Rights Plan) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price Current Market Price per share (determined as provided in paragraph (8) 3) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such Current Market Price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market pricepurchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2ii), 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 will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3iii) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4iv) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including securitiescash or assets or securities (other than rights pursuant to a Rights Plan), but excluding (iA) any rights, options or warrants referred to in paragraph (21(ii) of this Section, (iiB) any dividend or distribution paid exclusively in cash, (iiiC) any dividend or distribution referred to in paragraph (11(i) of this Section and (ivD) any distribution consideration distributed in connection with any merger or consolidation to which Section 1211 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price Current Market Price per share (determined as provided in paragraph (8) 3) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such Current Market Price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution, or in the case of a Spin Off, immediately prior to the opening of business on the day following the last Trading Day of the Measurement Period. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. In the event the Company distributes shares of capital stock of a Subsidiary, the Conversion Rate will be adjusted, if at all, based on the market value of the Subsidiary stock so distributed relative to the market value of the Common Stock, as described below. The Board of Directors shall determine fair market values for the purposes of this Section 12.4(1)(iv), whose determination shall be conclusive and described in a Board Resolution filed with the Trustee; provided, however, that in respect of a dividend or other distribution of shares of capital stock of a class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company which has a Subsidiary Closing Price (a “Spin-off”), the fair market value of the securities to be distributed shall equal the average of the daily Subsidiary Closing Price of such securities for the five consecutive Trading Days commencing on and including the sixth Trading Day of such securities after the effectiveness of the Spin-off (the “Measurement Period”); provided, further, that in the event that an underwritten initial public offering of the securities in the Spin-off occurs simultaneously with the Spin-off, fair market value of the securities distributed in the Spin- off shall be the initial public offering price of such securities and the market price per share of the Common Stock shall mean the Closing Sale Price for the Common Stock on the same Trading Day.
(5v) In case the Company or any of its Subsidiaries shall make a tender or exchange offer for Common Stock (for the avoidance of doubt, excluding options, warrants, purchase rights and other securities convertible, exchangeable or exercisable for Common Stock), to the extent that the cash and value of any other consideration included in the payment per share of Common Stock in such offer exceeds the Closing Sale Price of our Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, and such tender or exchange offer shall expire, then, 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 such offer may have been amended), the Conversion Rate shall be increased so that the Conversion Rate shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to close of business on the Expiration Date by a fraction of which the numerator shall be the sum of (x) the aggregate consideration (determined as the sum of the aggregate amount of cash consideration and the aggregate fair market value (as determined 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 thereof) of any other consideration) payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the last time at which such tenders could have been made on the Expiration Date (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 (less any Purchased Shares and excluding any shares held in the treasury of the Company) at the Expiration Time and the Current Market Price per share of Common Stock (as determined in accordance with subsection (3) of this Section 12.4) on the Trading Day next succeeding the Expiration Date, and the denominator shall be the product of the number of shares of Common Stock outstanding (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Current Market Price per share of the Common Stock (as determined in accordance with subsection (3) of this Section 12.4) on the Trading Day next succeeding the Expiration Date, such increase to become effective immediately prior to the opening of business on the day following the Expiration Date. In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate which would have been in effect based upon the number of shares actually purchased. If the application of this Section 12.4(1)(v) to any tender offer would result in a decrease in the Conversion Rate, no adjustment shall be made for such tender offer under this Section 12.4(1)(v). For purposes of this Section 12.4(1)(v), the term “tender offer” shall mean and include both tender offers and exchange offers, all references to “purchases” of shares in tender offers (and all similar references) shall mean and include both the purchase of shares in tender offers and the acquisition of shares pursuant to exchange offers, and all references to “tendered shares” (and all similar references) shall mean and include shares tendered in both tender offers and exchange offers.
(vi) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute cash to all holders of its outstanding Common Stock (excluding any cash that is distributed as part of a distribution referred to in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (61(iv) of this Section has been made (the "combined or cash and tender amount"), exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (8) of this Sectiondistributed upon a merger or consolidation to which Section 12.11 applies) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal to the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (X) the numerator of which the numerator shall be equal to the current market price Current Market Price per share (determined as provided in paragraph (8) 3) of this Section) of the Common Stock on the date fixed for such determination plus the amount per share of such dividend or distribution and (Y) the denominator of which shall be equal to the current market price Current Market Price per share (determined as provided in paragraph (8) 3) of this SectionSection 12.4) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I) all Excess Payments payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.5% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount.
(72) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "“the date fixed for the determination of stockholders entitled to receive such distribution" ” and "“the date fixed for such determination" ” within the meaning of paragraph (41(iv) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "“the day upon which such subdivision becomes effective" ” or "“the day upon which such combination becomes effective"”, as the case may be, and "“the day upon which such subdivision or combination becomes effective" ” within the meaning of paragraph 1(iii) of this Section 12.4).
(3) of this Section). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of (A) any computation under paragraphs (21(ii), (4), iv) or (5) and (6v) of this SectionSection 12.4, the current market price “Current Market Price” per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Sale Prices for the Common Stock on the Mexican Stock Exchange for 30 10 consecutive Trading Days selected by the Company commencing not more than 45 20 Trading Days before, and (I) in the case of paragraphs (1)(ii) or (iv) of this Section 12.4, ending not later than, the earlier of the day in question date fixed for determination and the day before the "“ex" date -date” with respect to the issuance or distribution requiring such computation or (II) in the case of paragraph (1)(v) of this Section 12.4, ending not later than, the Expiration Date with respect to the tender offer requiring such computation; and (B) any computation under paragraph (1)(vi) of this Section 12.4, the “Current Market Price” per share of Common Stock on any date shall be calculated by the Company and be the average of the daily Closing Sale Prices for the first 10 consecutive Trading Days from and including the first “ex-date” with respect to the dividend or other distribution requiring such computation. For purposes of this paragraph, the term " '“ex' -date"”, when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(94) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent U.S. $0.01 or to the nearest one-hundredth ten-thousandth of a share, as the case may be.
(105) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (11)(i), (2ii), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.
Appears in 1 contract
Sources: Indenture (Solectron Corp)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution in connection with any merger or consolidation to which Section 1211 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Date.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends), distribute to all holders of its Common Stock cash in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made (the "combined cash and tender amount"), exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I) all Excess Payments payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.5% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount.
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and (6) of this Section, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of the Common Stock on the Mexican Stock Exchange for 30 consecutive Trading Days commencing not more than 45 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.number
Appears in 1 contract
Sources: Indenture (Critical Path Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.
(1) In case at any time after the date of the issuance of the applicable Securities, the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) 9 of this Section, in case at any time after the date of the issuance of the applicable Securities, the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into Common Stock without any action required by the Company or any other person) entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) 10) of this Section) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than pursuant to a dividend reinvestment plan), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case at any time after the date of the issuance of the applicable Securities, outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase reduction or reductionincrease, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to In case at any time after the last sentence date of paragraph (7) the issuance of this Sectionthe applicable Securities, in case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtednessStock, shares of any class of its capital stock, evidences of its indebtedness or other property assets (including securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) cash and any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution in connection with any merger or consolidation to which Section 1211 appliesSection), the Conversion Rate shall be adjusted so that the same shall equal the rate price determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) 10) of this Section) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares of capital stock or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution.
(5) In case at any time after the date of the issuance of the applicable Securities, the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which Section 1612 applies or as part of a distribution referred to in paragraph (4) of this Section) in an aggregate amount that, combined together with with:
(IA) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and made, and
(IIB) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made made, (the amount of such cash distribution together with the amounts described in clauses (A) and (B) above being referred to herein as the "combined cash and tender amountAggregate Cash Distribution Amount"), ) exceeds 12.510% of the product of (I) the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution distribution, times (II) the number of shares of Common Stock outstanding on such date (the amount by which the Aggregate Cash Distribution Amount exceeds 10% of the product of the amounts described in clauses (I) and (II) above being referred to herein as the "aggregate current market priceExcess Amount"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be increased in accordance with the following formula: AC = CR / M - (EA/O)) ----------- (M) Where: AC = the adjusted so that the same shall equal the rate determined by multiplying Conversion Rate. CR = the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction of which the numerator shall be distribution. M = the current market price per share (determined as provided in paragraph (8) 10) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal stockholders entitled to receive the quotient of (x) distribution. EA = the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) Excess Amount. O = the number of shares of Common Stock outstanding on such the date fixed for determinationdetermination of the stockholders entitled to receive the distribution.
(6) In case at any time after the date of the issuance of the applicable Securities, a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with with:
(IA) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender or exchange offer offer, by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and made, and
(IIB) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock made exclusively in cash within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") made, exceeds 12.510% of the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) 10) of this Section) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended), times (II) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of on the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be reduced in accordance with the following formula: AC = CR / (M x O) - C ------------- M x (O - TS) Where: AC = the adjusted so that the same shall equal the rate determined by multiplying Conversion Rate. CR = the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator shall be the product of (A) Time. M = the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section10) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time multiplied by (II) Time. O = the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date Expiration Time. C = the amount of cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below). TS = the number of all shares validly tendered and not withdrawn as of the Expiration Time less (B) the combined tender and cash amountshares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 1612 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section).
(8) In case at any time after the date of the issuance of the applicable Securities, a tender offer made by a Person other than the Company, any Subsidiary of the Company, ITC Holding Company, Inc., or a wholly owned subsidiary of ITC Holding Company, Inc., for an amount which increases the offeror's ownership of Common Stock to more than 25% of the Common Stock outstanding and shall involve payment by such Person 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) as of the last time (the "Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) that exceeds the current market price of the Common Stock on the Trading Day next succeeding the Expiration Time, and in which, as of the Expiration Time, the Board of Directors is not recommending rejection of the offer, the Conversion Rate shall be adjusted in accordance with the following formula: AC = CR / (M1 x O) ------------------- C+ (O1 x M1) Where: AC = the adjusted Conversion Rate. Rights CR = the Conversion Rate immediately prior to close of business on the date of the Expiration Time. M1 = the current market price per share of the Common Stock (determined as provided in paragraph (10) of this Section) on the date next succeeding the Expiration Time. O = the number of shares of Common Stock outstanding (including any tendered shares) on the Expiration Time. O1 = the number of shares of Common Stock outstanding (less any Purchased Shares, as defined below) outstanding on the Expiration Time. C = the amount of cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (as defined below). TS = the number 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"). In the event that such Person is obligated to purchase shares pursuant to any such tender or exchange offer, but such person is permanently prevented by applicable law form effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender or exchange offer had not been made. Notwithstanding the foregoing, the adjustment described in this Section 1605(8) shall not be made if, as of the Expiration Time, the offering documents with respect to such offer disclose a plan or intention to cause the Company to engage in any transaction described in Article Eight.
(9) In case at any time after the date of the issuance of the applicable Securities, the Company shall issue rights or warrants issued by the Company to all holders of its the Common Stock entitling the holders thereof to subscribe for or purchase shares of Common StockStock (either initially or under certain circumstances), which rights or warrants (i) are deemed to be transferred with such shares of Common Stock, (ii) are not exercisable and (iii) are also issued in respect of future issuances of Common Stock, in each case in clauses (i) through (iii) until the occurrences occurrence of a specified event or events ("Trigger Event"), shall for the purposes of this Section 1605 not be deemed issued or distributed until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) whereupon such rights and (6) of this Section, the current market price per share of Common Stock on any date warrants shall be calculated by the Company and be deemed to be the average of the last reported sale price of the Common Stock on the Mexican Stock Exchange for 30 consecutive Trading Days commencing not more than 45 Trading Days before, have been distributed and ending not later than, the earlier of the day in question and the day before the "ex" date with respect an appropriate adjustment (if any is required) to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.Co
Appears in 1 contract
Adjustment of Conversion Rate. (1) The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1i) In case the Company shall pay or make a dividend or other distribution on any class shares of capital stock of the Company Common Stock payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1i), 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 will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2ii) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or optionsin any case other than in connection with a Rights Plan) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price Current Market Price per share (determined as provided in paragraph (8) 3) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such Current Market Price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market pricepurchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2ii), 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 will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3iii) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4iv) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including securitiescash or assets or securities (other than rights pursuant to a Rights Plan), but excluding (iA) any rights, options or warrants referred to in paragraph (21(ii) of this Section, (iiB) any dividend or distribution paid exclusively in cash, (iiiC) any dividend or distribution referred to in paragraph (11(i) of this Section and (ivD) any distribution consideration distributed in connection with any merger or consolidation to which Section 1211 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price Current Market Price per share (determined as provided in paragraph (8) 3) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such Current Market Price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution, or in the case of a Spin Off, immediately prior to the opening of business on the day following the last Trading Day of the Measurement Period. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. In the event the Company distributes shares of capital stock of a Subsidiary, the Conversion Rate will be adjusted, if at all, based on the market value of the Subsidiary stock so distributed relative to the market value of the Common Stock, as described below. The Board of Directors shall determine fair market values for the purposes of this Section 12.4(1)(iv), whose determination shall be conclusive and described in a Board Resolution filed with the Trustee; provided, however, that in respect of a dividend or other distribution of shares of capital stock of a class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company which has a Subsidiary Closing Price (a "Spin-off"), the fair market value of the securities to be distributed shall equal the average of the daily Subsidiary Closing Price of such securities for the five consecutive Trading Days commencing on and including the sixth Trading Day of such securities after the effectiveness of the Spin-off (the "Measurement Period"); provided, further, that in the event that an underwritten initial public offering of the securities in the Spin-off occurs simultaneously with the Spin-off, fair market value of the securities distributed in the Spin-off shall be the initial public offering price of such securities and the market price per share of the Common Stock shall mean the Closing Sale Price for the Common Stock on the same Trading Day.
(5v) In case the Company or any of its Subsidiaries shall make a tender or exchange offer for Common Stock (for the avoidance of doubt, excluding options, warrants, purchase rights and other securities convertible, exchangeable or exercisable for Common Stock), to the extent that the cash and value of any other consideration included in the payment per share of Common Stock in such offer exceeds the Closing Sale Price of our Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, and such tender or exchange offer shall expire, then, 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 such offer may have been amended), the Conversion Rate shall be increased so that the Conversion Rate shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to close of business on the Expiration Date by a fraction of which the numerator shall be the sum of (x) the aggregate consideration (determined as the sum of the aggregate amount of cash consideration and the aggregate fair market value (as determined 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 thereof) of any other consideration) payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the last time at which such tenders could have been made on the Expiration Date (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 (less any Purchased Shares and excluding any shares held in the treasury of the Company) at the Expiration Time and the Current Market Price per share of Common Stock (as determined in accordance with subsection (3) of this Section 12.4) on the Trading Day next succeeding the Expiration Date, and the denominator shall be the product of the number of shares of Common Stock outstanding (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Current Market Price per share of the Common Stock (as determined in accordance with subsection (3) of this Section 12.4) on the Trading Day next succeeding the Expiration Date, such increase to become effective immediately prior to the opening of business on the day following the Expiration Date. In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate which would have been in effect based upon the number of shares actually purchased. If the application of this Section 12.4(1)(v) to any tender offer would result in a decrease in the Conversion Rate, no adjustment shall be made for such tender offer under this Section 12.4(1)(v). For purposes of this Section 12.4(1)(v), the term "tender offer" shall mean and include both tender offers and exchange offers, all references to "purchases" of shares in tender offers (and all similar references) shall mean and include both the purchase of shares in tender offers and the acquisition of shares pursuant to exchange offers, and all references to "tendered shares" (and all similar references) shall mean and include shares tendered in both tender offers and exchange offers.
(vi) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute cash to all holders of its outstanding Common Stock (excluding any cash that is distributed as part of a distribution referred to in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (61(iv) of this Section has been made (the "combined or cash and tender amount"), exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (8) of this Sectiondistributed upon a merger or consolidation to which Section 12.11 applies) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal to the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (X) the numerator of which the numerator shall be equal to the current market price Current Market Price per share (determined as provided in paragraph (8) 3) of this Section) of the Common Stock on the date fixed for such determination plus the amount per share of such dividend or distribution and (Y) the denominator of which shall be equal to the current market price Current Market Price per share (determined as provided in paragraph (8) 3) of this SectionSection 12.4) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I) all Excess Payments payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.5% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount.
(72) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (41(iv) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph 1(iii) of this Section 12.4).
(3) of this Section). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of (A) any computation under paragraphs (21(ii), (4), iv) or (5) and (6v) of this SectionSection 12.4, the current market price "Current Market Price" per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Sale Prices for the Common Stock on the Mexican Stock Exchange for 30 10 consecutive Trading Days selected by the Company commencing not more than 45 20 Trading Days before, and (I) in the case of paragraphs (1)(ii) or (iv) of this Section 12.4, ending not later than, the earlier of the day in question date fixed for determination and the day before the "ex-date" date with respect to the issuance or distribution requiring such computation or (II) in the case of paragraph (1)(v) of this Section 12.4, ending not later than, the Expiration Date with respect to the tender offer requiring such computation; and (B) any computation under paragraph (1)(vi) of this Section 12.4, the "Current Market Price" per share of Common Stock on any date shall be calculated by the Company and be the average of the daily Closing Sale Prices for the first 10 consecutive Trading Days from and including the first "ex-date" with respect to the dividend or other distribution requiring such computation. For purposes of this paragraph, the term " '"ex' -date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(94) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent U.S. $0.01 or to the nearest one-hundredth ten-thousandth of a share, as the case may be.
(105) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (11)(i), (2ii), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.,
Appears in 1 contract
Sources: Indenture (Solectron Corp)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares Ordinary Shares to all holders of Common Stockits Ordinary Shares, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock Ordinary Shares outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock Ordinary Shares at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common StockOrdinary Shares. The Company shall will not pay any dividend or make any distribution on shares of Common Stock Ordinary Shares held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock Ordinary Shares entitling them to subscribe for or purchase shares of Common Stock Ordinary Shares at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock Ordinary Shares on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into Ordinary Shares without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock Ordinary Shares outstanding at the close of business on the date fixed for such determination plus the number of shares Ordinary Shares which the aggregate of Common Stock the offering price of the total number of Ordinary Shares so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock Ordinary Shares 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 of the total number of shares of Common Stock Ordinary Shares so offered for subscription or purchase would purchase at such current market pricepurchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock Ordinary Shares at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common StockOrdinary Shares. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock Ordinary Shares held in the treasury of the Company. In determining whether any rights, options or warrants entitle the holders thereof to subscribe for or purchase Ordinary Shares at less than such current market price, and in determing the aggregate offering price of such Ordinary Shares, there shall be taken into account any consideration received by the Company, including any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. Rights or warrants distributed by the Company to all holders of Ordinary Shares entitling the holders thereof to subscribe for or purchase shares of the Company's capital stock (either initially or under certain circumstances), which rights or warrants, until the occurrence of a specified event or events ("Trigger Event"): (i) are deemed to be transferred with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of Ordinary Shares, shall be deemed not to have been distributed for purposes of this Section 12.4 (and no adjustment to the Convertible Rate under this Section 12.4 will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall be made under this Section 12.4(2). If any such rights or warrants are subject to events, upon the occurrence of which such rights or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and record date with respect to new rights or warrants with such rights (and a termination or expiration of the existing rights or warrants without exercise by any of the holders thereof). In addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Rate under this Section 12.4 was made, (1) in the case of any such rights or warrants that shall all have been redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or repurchase price received by a holder or holders of Ordinary Shares with respect to such rights or warrants (assuming such holder had retained such rights or warrants), made to all holders of Ordinary Shares as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had not been issued. No adjustment of the Conversion Rate shall be made pursuant to this Section 12.4(2) in respect of rights, options or warrants distributed or deemed distributed on any Trigger Event to the extent that such rights or warrants are actually distributed, or reserved by the Company for distribution to Holders of Securities upon conversion by such holders of Securities to Ordinary Shares and will not expire prior to the maturity of the Securities.
(3) In case outstanding shares of Common Stock Ordinary Shares shall be subdivided into a greater number of shares of Common StockOrdinary Shares, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock Ordinary Shares shall each be combined into a smaller number of shares of Common StockOrdinary Shares, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock Ordinary Shares evidences of its indebtedness, shares of any class of capital stock, stock or other property assets (including securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution in connection with any merger mergers or consolidation consolidations to which Section 1211 12.11 applies), then, in each such case (unless the Company elects to reserve such securities, evidence of indebtedness or assets for distribution to the Holders upon the conversion of the Securities so that any such Holder converting Ordinary Shares will receive upon such conversion, in addition to the Ordinary Shares to which such holder is entitled, the amount and kind of such securities, evidence of indebtedness or assets which such Holder would have received if such Holder had converted its Securities into Ordinary Shares immediately prior to the date fixed for determination of stockholders entitled to receive such distribution) the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock Ordinary Shares on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directorsdirectors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common StockOrdinary Share and the denominator shall be such current market price per Ordinary Share, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock Ordinary Shares cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section or cash distributed upon a merger or consolidation to which Section 12.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock Ordinary Shares made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution (but not prior to the date of this Indenture) and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made (the "combined cash and tender amount"), exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I) all Excess Payments payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) to all holders of plus the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.5% of the product of the current fair market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer value (as it may be amended) times determined by the number Board of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration TimeDirectors, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate whose determination shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate immediately prior to close of business on the date of the Expiration Time by conclusive and described in a fraction of which (i) the numerator shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount.
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and (6) of this Section, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of the Common Stock on the Mexican Stock Exchange for 30 consecutive Trading Days commencing not more than 45 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.Board
Appears in 1 contract
Sources: Indenture (Amdocs LTD)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 10.04) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Note into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution in connection with any merger or consolidation to which Section 1211 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Date.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends), distribute to all holders of its Common Stock cash in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made (the "combined cash and tender amount"), exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I) all Excess Payments payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.5% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount.
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and (6) of this Section, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of the Common Stock on the Mexican Stock Exchange for 30 consecutive Trading Days commencing not more than 45 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.subscription
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on shares of any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution in connection with any merger mergers or consolidation consolidations to which Section 1211 12.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directorsdirectors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed as part of a distribution referred to in paragraph (4) of this Section or cash distributed upon a merger or consolidation to which Section 12.11 applies) in an aggregate amount that, combined together with (I) the aggregate amount of any other all-cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section 12.4 has been made (the "combined cash and tender amount"), ) exceeds 12.510% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSection 12.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 12.4) of the Common Stock on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months 365- day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock within 12 months 365-day period preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, case immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator of which shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 12.4) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 12.4) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 12.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this SectionSection 12.4). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and or (6) of this SectionSection 12.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, than the earlier of the day in question and the day before the "ex" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " "'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades the regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this SectionSection 12.4, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes. The Company shall have the power to resolve any ambiguity or correct any error in this paragraph (10) and its actions in so doing shall, absent manifest error, be final and conclusive.
(11) In any case in which Notwithstanding the foregoing provisions of this Section 1204 shall require that an Section, no adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment Conversion Rate shall be required by such event over and above to be made (a) upon the ADSs issuable upon such conversion before giving effect issuance of shares of Common Stock pursuant to such conversion rate adjustment and any present or future plan for the reinvestment of dividends or (iib) paying to such Holder any amount in cash in lieu because of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ tender or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence exchange offer of the event requiring such adjustmentcharacter described in Rule 13e-4(h)(5) under the Exchange Act or any successor rule thereto.
(12) The initial Conversion Rate reflects that as of To the date of this Indentureextent permitted by applicable law, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (as so changed20) shall be adjusted proportionately.days, the increase is irrevocable during such period, and the
Appears in 1 contract
Sources: Indenture (Oni Systems Corp)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 11.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution consideration distributed in connection with any merger or consolidation to which Section 1211 11.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 11.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which Section 11.11 applies or as part of a distribution referred to in paragraph (4) of this Section) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section 11.4 has been made (the "combined cash and tender amount"), ) exceeds 12.510% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSection 11.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market pricethreshold amount"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price threshold amount divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section 11.4) of the Common Stock on such date for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 11.4) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator of which shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSection 11.4) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section 11.4) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 11.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", ," as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this SectionSection 11.4). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and or (6) of this SectionSection 11.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "exex date" date with respect to the issuance or distribution requiring such computation. For purposes of this -76- 82 paragraph, the term "ex date," 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this SectionSection 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of stock Common Stock or issuance of rights or warrants to purchase or subscribe for stock Common Stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.
Appears in 1 contract
Sources: Indenture (I2 Technologies Inc)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) adjustment from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock Capital Stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after prior to the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) 9 of this SectionSection 14.4, in case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into Common Stock without any action required by the Company or any other person) entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) 10) of this SectionSection 14.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrants, the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice per share and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after prior to the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase reduction or reductionincrease, as the case may be, to become effective immediately after prior to the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtednessStock, shares of any class of capital stockits Capital Stock, evidences of its indebtedness, cash or other property assets (including securities, but excluding (ia) any rights, options or warrants referred to in paragraph (2) of this Section, (iib) any dividend or distribution paid exclusively in cash, (iiic) any dividend or distribution referred to in paragraph (1) of this Section and (ivd) any distribution distributions referred to in connection with any merger or consolidation to which Section 1211 appliesparagraph (5) of this Section), the Conversion Rate shall be adjusted so that the same shall equal the rate price determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) 10) of this Section) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares of Capital Stock or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which Section 14.11 applies or as part of a distribution referred to in paragraph (4) of this Section other than those referenced in the first parenthetical contained therein) in an aggregate amount that, combined together with with:
(Ia) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and made, and
(IIb) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made (the amount of such cash distribution together with the amounts described in clauses (a) and (b) above being referred to herein as the "combined cash and tender amountAggregate Cash Distribution Amount"), exceeds 12.510% of the product of (i) the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution distribution, times (ii) the number of shares of Common Stock outstanding on such date (the amount by which the Aggregate Cash Distribution Amount exceeds 10% of the product of the amounts described in clauses (i) and (ii) above being referred to herein as the "aggregate current market priceExcess Amount"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be increased in accordance with the following formula: EA ---- AC = CR ) M - / / O / / -------------- / / M / / Where: AC = the adjusted so that the same shall equal the rate determined by multiplying Conversion Rate. CR = the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction of which the numerator shall be applicable distribution. M = the current market price per share (determined as provided in paragraph (8) 10) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal stockholders entitled to receive the quotient of (x) applicable distribution. EA = the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) Excess Amount. O = the number of shares of Common Stock outstanding on such the date fixed for determinationdetermination of the stockholders entitled to receive the distribution.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) that combined together with:
(a) the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with (I) all Excess Payments the Trustee), as of the expiration of such tender offer, of consideration payable in respect of any other tender or exchange offer offer, by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and made, and
(IIb) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock made exclusively in cash within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") made, exceeds 12.510% of the product of (i) the current market price per share of the Common Stock (determined as provided in paragraph (8) 10) of this Section) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended), times (ii) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of on the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be reduced in accordance with the following formula: AC = CR ) (M X O) - C ----------- / / M x (O - TS) / / Where: AC = the adjusted so that the same shall equal the rate determined by multiplying Conversion Rate. CR = the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator shall be the product of (A) Time. M = the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section10) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time multiplied by (II) Time. O = the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date Expiration Time. C = the amount of cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares. TS = the number of all shares of Common Stock validly tendered and not withdrawn as of the Expiration Time less (B) the combined tender and cash amountshares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 14.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this Section).
(8) In case a tender offer made by a Person other than the Company, any Subsidiary of the Company for an amount which increases the offeror's ownership of Common Stock to more than 25% of the Common Stock outstanding and shall involve payment by such Person 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 as filed with the Trustee) as of the last time (the "Third Party Expiration Time") tenders could have been made pursuant to such tender offer (as it may be amended) that exceeds the current market price of the Common Stock on the Trading Day next succeeding the Third Party Expiration Time, and in which, as of the Third Party Expiration Time, the Board of Directors is not recommending rejection of the offer, the Conversion Rate shall be adjusted in accordance with the following formula: AC = CR ) (M1 X O) ---------------- / / C+ (O1 x M1) / / Where: AC = the adjusted Conversion Rate. Rights CR = the Conversion Rate immediately prior to close of business on the date of the Third Party Expiration Time. M1 = the current market price per share of the Common Stock (determined as provided in paragraph (10) of this Section) on the date next succeeding the Third Party Expiration Time. O = the number of shares of Common Stock outstanding (including any tendered shares) on the Third Party Expiration Time. O1 = the number of shares of Common Stock outstanding (less any Third Party Purchased Shares, as defined below) outstanding on the Third Party Expiration Time. C = the amount of cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution as filed with the Trustee) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of Third Party Purchased Shares. The number of all shares of Common Stock validly tendered and not withdrawn as of the Third Party Expiration Time and deemed accepted up to any such maximum, is herein referred to as the "Third Party Purchased Shares." In the event that such Person is obligated to purchase shares pursuant to any such tender or exchange offer, but such Person is permanently prevented by applicable law form effecting any such purchases or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if such tender or exchange offer had not been made. Notwithstanding the foregoing, the adjustment described in this Section 14.4(8) shall not be made if, as of the Expiration Time, the offering documents with respect to such offer disclose a plan or intention to cause the Company to engage in any transaction described in Article VIII.
(9) In case the Company shall issue rights, options or warrants issued by the Company to all holders of its the Common Stock entitling the holders thereof to subscribe for or purchase shares of Common StockStock (either initially or under certain circumstances), which rights rights, options or warrants (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 occurrences occurrence of a specified event or events ("Trigger Event"), shall for the purposes of this Section 14.4 not be deemed issued or distributed until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4)whereupon such rights, (5) options and (6) of this Section, the current market price per share of Common Stock on any date warrants shall be calculated by the Company and be deemed to be the average of the last reported sale price of the Common Stock on the Mexican Stock Exchange for 30 consecutive Trading Days commencing not more than 45 Trading Days before, have been distributed and ending not later than, the earlier of the day in question and the day before the "ex" date with respect an appropriate adjustment (if any is required) to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares14.4. If the number of L Shares represented by an ADS should changeany such rights, whether in conjunction with one of the foregoing adjustment events options or otherwisewarrants, the Conversion Rate (as so changed) shall be adjusted proportionately.including any such existi
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section), in case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSECTION 11.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (2), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section), in case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or rights, options or warrants to subscribe for or purchase shares of any class of capital stock (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person) or other property (including cash or assets or securities, but excluding (i) any rights, options or warrants referred to in paragraph (2) of this Section, (ii) any dividend or distribution paid exclusively in cash, (iii) any dividend or distribution referred to in paragraph (1) of this Section and (iv) any distribution consideration distributed in connection with any merger or consolidation to which Section 1211 SECTION 11.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSECTION 11.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. If, after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which SECTION 11.11 applies or as part of a distribution referred to in paragraph (4) of this Section) in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of other consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section SECTION 11.4 has been made (the "combined cash and tender amount"), ) exceeds 12.510% of the product of the current market price per share (determined as provided in paragraph (8) of this SectionSECTION 11.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market pricethreshold amount"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (i) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price threshold amount divided by (y) the number of shares of Common Stock outstanding on such date for determination and (ii) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) of this SECTION 11.4) of the Common Stock on such date for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders (based on the acceptance (up to any maximum specified in the terms of Excess Payments in the tender offer) of Purchased Shares (as defined below)) of an aggregate amount consideration having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) that combined together with (I) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), as of the expiration of such tender offer, of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSECTION 11.4) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator of which shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be equal to (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SectionSECTION 11.4) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount, and (ii) the denominator of which shall be equal to the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this SECTION 11.4) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any tendered shares) as of the Expiration Time less the number of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 SECTION 11.11 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", ," as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this SectionSECTION 11.4). Rights Rights, options or warrants issued by the Company to all holders of its Common Stock entitling the holders thereof to subscribe for or purchase shares of Common Stockcapital stock of the Company, which rights rights, options or warrants (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 Stockshares of capital stock, in each case in clauses (i) through (iii) until the occurrences occurrence of a specified event or events ("Trigger Event"), shall for the purposes of this Section SECTION 11.4 not be deemed issued or distributed until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and or (6) of this SectionSECTION 11.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "exex date" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term "ex date," 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; providedPROVIDED, howeverHOWEVER, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this SectionSECTION 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of stock Common Stock or issuance of rights or warrants to purchase or subscribe for stock Common Stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.f
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any follows (provided that the Company shall not be required to make any adjustment to the Conversion Rate until the cumulative required adjustments amount to 1.0% or more of the Conversion Rate, and any adjustment that would otherwise be required to be made but for such 1.0% threshold shall take be carried forward and taken into account the number of shares of Common Stock represented by each ADS before and after each such in any subsequent adjustment.):
(1) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common StockOrdinary Shares, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock Ordinary Shares outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective (subject to paragraph (12) of this Section 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1), the number of shares of Common Stock Ordinary Shares at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common StockOrdinary Shares. The Company shall will not pay any dividend or make any distribution on shares of Common Stock Ordinary Shares held in the treasury of the Company.
(2) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock Ordinary Shares entitling them to subscribe for or purchase shares of Common Stock Ordinary Shares at a price per share less than the current market price per share (determined as provided in paragraph (8) of this SectionSection 11.4) of the Common Stock Ordinary Shares on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants (1) that by their terms will also be issued to any Holder upon conversion of a Security into Ordinary Shares without any action required by the Company or any other Person or (2) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock Ordinary Shares outstanding at the close of business on the date fixed for such determination plus the number of shares Ordinary Shares which the aggregate of Common Stock the offering price of the total number of Ordinary Shares so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock Ordinary Shares 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 of the total number of shares of Common Stock Ordinary Shares so offered for subscription or purchase would purchase at such current market pricepurchase, such increase to become effective (subject to paragraph (12) of this Section 11.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2), the number of shares of Common Stock Ordinary Shares at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. Ordinary Shares, The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock Ordinary Shares held in the treasury of the Company.
(3) In case outstanding shares of Common Stock Ordinary Shares shall be subdivided into a greater number of shares of Common StockOrdinary Shares, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock Ordinary Shares shall each be combined into a smaller number of shares of Common StockOrdinary Shares, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock Ordinary Shares evidences of its indebtedness, shares of any class of capital stock, or other property (including cash or assets or securities, but excluding (i1) any rights, options or warrants referred to in paragraph (2) of this SectionSection 11.4 and the distribution of rights to all holders of Ordinary Shares pursuant to the adoption of a stockholders' rights plan or the detachment of such rights under the terms of such stockholders' rights plan, (ii2) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (iii5) and (6) of this Section 11.4, (3) any dividend or distribution referred to in paragraph (1) of this Section 11.4 and (iv4) any distribution in connection with any merger or consolidation to which Section 1211 11.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 11.4) of the Common Stock Ordinary Shares on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the TrusteeResolution) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common StockOrdinary Shares and the denominator shall be such current market price per share of the Ordinary Shares, such adjustment to become effective (subject to paragraph (12) of this Section 11.4) immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution. In addition, if the Company implements a rights plan in respect of its Ordinary Shares ("RIGHTS PLAN"), the Company will provide under such Rights Plan that the Holders of the Securities will receive, in addition to the Ordinary Shares, the rights under the Rights Plan in respect of such Ordinary Shares (whether or not the rights under the Rights Plan have separated from the Ordinary Shares at the time of conversion), subject to any limitations set forth in the Rights Plan.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock Ordinary Shares cash (excluding cash portions of any distribution referred to in an aggregate amount thatSection 11.4(4) and any cash that is distributed upon a merger or consolidation to which Section 11.11 applies), combined together with (I) the aggregate Conversion Price shall be reduced by the amount of any other such cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6) of this Section has been made (the "combined cash and tender amount"), exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), thenOrdinary Share, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on the date fixed for such determination and the denominator shall be the current market price per share (determined as provided in paragraph (8) of this Section) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date for determinationaccordingly.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock Ordinary Shares shall expire and such tender or exchange offer be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as amended upon determined by the expiration thereofBoard of Directors, whose determination shall be conclusive and described in a Board Resolution) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I1) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring Ordinary Shares concluded within the 12 months 365-day period preceding the expiration completion of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II2) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock Ordinary Shares made exclusively in cash within 12 months the 365-day period preceding the expiration completion of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section 11.4 has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock Ordinary Shares (determined as provided in paragraph (8) of this SectionSection 11.4) as of the last time completion of such tender offer (the "Expiration TimeCOMPLETION DATE") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock Ordinary Shares outstanding (including any tendered or exchanged shares) as of the Expiration TimeCompletion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration TimeCompletion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time Completion Date by a fraction (A) the numerator of which shall be equal to (i) the numerator shall be the product of (Ax) the current market price per share of the Common Stock Ordinary Shares (determined as provided in paragraph (8) of this SectionSection 11.4) as of on the Expiration Time Completion Date multiplied by (y) the number of Ordinary Shares outstanding (including any tendered shares) on the Completion Date less (ii) the combined tender and cash amount, and (B) the number denominator of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator which shall be (A) equal to the product of (Ix) the current market price per share of the Common Stock Ordinary Shares (determined as provided in paragraph (8) of this SectionSection 11.4) on the date as of the Expiration Time Completion Date multiplied by (IIy) the number of shares of Common Stock Ordinary Shares outstanding (including any tendered or exchanged shares) on the date as of the Expiration Time Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date (B) the combined tender and cash amountshares deemed so accepted up to any such maximum, being referred to as the "PURCHASED SHARES").
(7) The reclassification of Common Stock Ordinary Shares into securities including other than Common Stock Ordinary Shares (other than any reclassification upon a consolidation or merger to which Section 1211 11.11 applies) shall be deemed to involve (a1) a distribution of such securities other than Common Stock Ordinary Shares to all holders of Common Stock Ordinary Shares (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4) of this SectionSection 11.4), and (b2) a subdivision or combination, as the case may be, of the number of shares of Common Stock Ordinary Shares outstanding immediately prior to such reclassification into the number of shares of Common Stock Ordinary Shares outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", ," as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3) of this SectionSection 11.4). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of any computation under paragraphs (2), (4), (5) and or (6) of this SectionSection 11.4, the current market price per share of Common Stock Ordinary Shares on any date shall be calculated by the Company and be deemed to be the average of Volume Weighted Average Price for the last reported sale price of the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "exex date" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term "ex date," 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock Ordinary Shares trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; providedPROVIDED, howeverHOWEVER, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article 11 shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1), (2), (3), (4), (5), (6) and (614) of this SectionSection 11.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock Ordinary Shares resulting from any dividend or distribution of stock Ordinary Shares or issuance of rights or warrants to purchase or subscribe for stock Ordinary Shares or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; PROVIDED, HOWEVER, that such increase shall not be taken into account for purposes of determining whether the Volume Weighted Average Price of the Ordinary Shares exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11) Notwithstanding the foregoing provisions of this Section 11.4, no adjustment of the Conversion Rate shall be required to be made (1) upon the issuance of Ordinary Shares pursuant to any present or future plan for the reinvestment of dividends, (2) because of a tender or exchange offer of the character described in Rule 13e-4(h)(5) under the Exchange Act or any successor rule thereto or (3) as a result of a rights plan or poison pill implemented by the Company.
(12) In any case in which this Section 1204 11.4 shall require that an adjustment shall become effective be made immediately after following a determination date for an eventrecord date, the Company may elect to defer until the occurrence effectiveness of such adjustment (but in no event (i) issuing until a date later than the effective time of the event giving rise to such adjustment), in which case the Holder of Company shall, with respect to any Convertible Security converted after such record date and on and before such adjustment shall have become effective (1) defer paying any cash payment pursuant to Section 11.3 hereof or issuing to the occurrence Holder of such event Security the additional ADSs number of Ordinary Shares issuable upon such conversion by reason in excess of the conversion rate adjustment required by such event over and above number of Ordinary Shares issuable thereupon only on the ADSs issuable upon such conversion before giving effect basis of the Conversion Rate prior to such conversion rate adjustment adjustment, and (ii2) paying not later than five Business Days after such adjustment shall have become effective, pay to such Holder any amount in the appropriate cash in lieu of a fractional ADS payment pursuant to Section 1203; provided11.3 hereof and issue to such Holder the additional Ordinary Shares issuable on such conversion. Notwithstanding the foregoing, however, no adjustment of the Conversion Rate shall be made if the event giving rise to such adjustment does not occur.
(13) In the event that the Company distributes rights or warrants (other than those referred to in paragraph (2) above) pro rata to holders of Ordinary Shares, so long as any such rights or warrants have not expired or been redeemed by the Company, the Company shall deliver to such make proper provision so that the Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right of any Security surrendered for conversion will be entitled to receive upon such additional ADSsconversion, and such cash, in addition to the Ordinary Shares issuable upon the occurrence conversion of the event requiring Securities (the "CONVERSION SHARES"), a number of rights and warrants to be determined as follows: (i) if such adjustment.
(12) The initial Conversion Rate reflects that as of conversion occurs on or prior to the date of this Indenture, each ADS represents 20 L Shares. If for the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.distribut
Appears in 1 contract
Sources: Indenture (Drdgold LTD)
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing adjustments, calculated by the right to receive shares of Common Stock may become issuable) Company, from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective (subject to paragraph (l) of this Section 10.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2b) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 10.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants (1) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (2) that are only exercisable upon the occurrence of specified triggering event and such triggering event has not occurred), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (l) of this Section 10.4) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2b), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, or other property (including assets or securities, but excluding (i1) any rights, options or warrants referred to in paragraph (2b) of this SectionSection 10.4, (ii2) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (iiie) and (f) of this Section 10.4, (3) any dividend or distribution referred to in paragraph (1a) of this Section 10.4 and (iv4) any distribution in connection with any merger or consolidation to which Section 1211 10.11 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 10.4) of the Common Stock on the date fixed for such determination less the then fair market value (as determined by the "Reference Date"Board of Directors, whose determina- tion shall be conclusive and described in a Board Resolution) of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be the such current market price per share of the Common Stock Stock, such adjustment to become effective (subject to paragraph (l) of this Section 10.4) immediately prior to the opening of business on the Reference Date less day following the then date fixed for the determination of stockholders entitled to receive such distribution.
(e) In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a merger or consolidation to which Section 10.11 applies) in an aggregate amount that, combined together with (1) the aggregate amount of any other cash distributions to all holders of its Common Stock made exclusively in cash within the 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (e) has been made and (2) the aggregate of any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Date.
(5) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends), distribute to all holders of its Common Stock cash in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (IIResolution) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries Subsidiary for all or any portion of the Common Stock concluded within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6f) of this Section 10.4 has been made (the "combined cash and tender amount"), ) exceeds 12.510% of the product of the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 10.4) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (l) of Section 10.4, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (A) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 10.4) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (i) the excess of such combined cash and tender amount over 10% of such aggregate current market price divided by (ii) the number of shares of Common Stock outstanding on such date fixed for determination and (B) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 10.4) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination.
(6f) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as amended upon determined by the expiration thereofBoard of Directors, whose determination shall be conclusive and described in a Board Resolution) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I1) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring concluded within the 12 months 365-day period preceding the expiration completion of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6f) has been made and (II2) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's Common Stock made exclusively in cash within 12 months the 365-day period preceding the expiration completion of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5e) of this Section 10.4 has been made (the "combined tender and cash amount") exceeds 12.510% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SectionSection 10.4) as of the last time completion of such tender offer (the "Expiration TimeCompletion Date") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration TimeCompletion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration TimeCompletion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time Completion Date by a fraction (A) the numerator of which shall be equal to (i) the numerator shall be the product of (Ax) the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SectionSection 10.4) as of on the Expiration Time Completion Date multiplied by (By) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of on the Expiration Time Completion Date less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the combined tender and cash amount, and (B) the denominator of which shall be (A) equal to the product of (Ix) the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SectionSection 10.4) on the date as of the Expiration Time Completion Date multiplied by (IIy) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date as of the Expiration Time Completion Date less the number of all shares validly tendered and not withdrawn as of the Completion Date (B) the combined tender and cash amountshares deemed so accepted up to any such maximum, being referred to as the "Purchased Shares").
(7g) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 10.11 applies) shall be deemed to involve (a1) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "the date fixed for the determination of stockholders entitled to receive such distribution" and "the date fixed for such determination" within the meaning of paragraph (4d) of this SectionSection 10.4), and (b2) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "the day upon which such subdivision becomes effective" or "the day upon which such combination becomes effective", as the case may be, and "the day upon which such subdivision or combination becomes effective" within the meaning of paragraph (3c) of this SectionSection 10.4). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) h) For the purpose of any computation under paragraphs (2b), (4d), (5e) and or (6f) of this SectionSection 10.4, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Average Sales Prices Per Share for the Common Stock on the Mexican Stock Exchange for 30 five consecutive Trading Days selected by the Company commencing not more than 45 10 Trading Days before, and ending not later than, the earlier of the day in question and the day before the "exex date" date with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term "ex date," 'ex' date", when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9i) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9i)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9i) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10j) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1a), (2b), (3c), (4d), (5e) and (6f) of this SectionSection 10.4, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of stock Common Stock or issuance of rights or warrants to purchase or subscribe for stock Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive; provided, however, that such increase shall not be taken into account for purposes of determining whether the Average Sales Price Per Share of the Common Stock exceeds the Conversion Price by 105% in connection with an event which would otherwise be a Change in Control. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.6 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11k) Notwithstanding the foregoing provisions of this Section 10.4, no adjustment of the Conversion Rate shall be required to be made (1) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (2) because of a tender or exchange offer of the character described in Rule 13e-4(h) (5) under the Exchange Act or any successor rule thereto or (3) as a result of a rights plan or poison pill implemented by the Company.
(l) In any case in which this Section 1204 10.4 shall require that an adjustment shall become effective be made immediately after following a determination date for an eventRecord Date, the Company may elect to defer until the occurrence effectiveness of such adjustment (but in no event until a date later than the effective time of the event giving rise to such adjustment), in which case the Company shall, with respect to any Security converted after such Record Date and on and before such adjustment shall have become effective (i1) defer paying any cash payment pursuant to Section 10.3 hereof or issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.such
Appears in 1 contract
Adjustment of Conversion Rate. The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1a) In case the Company shall pay or make a dividend or other distribution on any class of capital stock Capital Stock of the Company payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective (subject to paragraph (l) of this Section 9.04) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (1a), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company. In no event shall this paragraph (a) apply in the case of an ordinary dividend.
(2b) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or options) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 9.04) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants (1) that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person or (2) that are only exercisable upon the occurrence of a specified triggering event and such triggering event has not occurred), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate 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 so offered for subscription or purchase and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market priceprice and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such increase to become effective (subject to paragraph (l) of this 9.04) immediately after the opening of business on the day following the date fixed for such determination. For the purposes of this paragraph (2b), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company shall will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3c) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4d) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtednessIndebtedness, shares of any class of capital stockCapital Stock, or other property (including cash or assets or securities, but excluding (i1) any rights, options or warrants referred to in paragraph (2b) of this SectionSection 9.04 and the distribution of rights to all holders of Common Stock pursuant to the adoption of a stockholders’ rights plan or the detachment of such rights under the terms of such stockholders’ rights plan, (ii2) any dividend or distribution paid exclusively in cash, except as set forth in paragraphs (iiie) and (f) of this Section 9.04 and (3) any dividend or distribution referred to in paragraph (1a) of this Section and (iv) any distribution in connection with any merger or consolidation to which Section 1211 applies)9.04, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (8) of this SectionSection 9.04(h)) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the TrusteeResolution) on the Reference Date of the portion of the assets, shares or evidences of indebtedness Indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share (determined as provided in this Section 9.04(h)) of the Common Stock, such adjustment to become effective (subject to paragraph (l) of this Section 9.04) immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution.
(5e) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute to all holders of its Common Stock cash (excluding cash portions of distribution referred to in Section 9.04(d) and any cash that is distributed upon a merger or consolidation to which Section 9.11 applies) in an aggregate amount that, combined together with (I1) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5e) has been made and (II2) the aggregate amount of all Excess Payments any cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of other consideration payable in respect of any tender or exchange offer by the Company or any of its Subsidiaries Subsidiary for all or any portion of the Common Stock concluded within the 12 months 365-day period preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (6f) of this Section 9.04 has been made (the "combined cash “Combined Cash and tender amount"), Tender Amount”) exceeds 12.5% ten percent (10%) of the product of the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 9.04) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"“Aggregate Current Market Price”), then, and in each such case, immediately after the close of business on such date for determination, subject to paragraph (l) of Section 9.04, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (A) the numerator of which the numerator shall be equal to the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 9.04) of the Common Stock on the date fixed for such determination less an amount equal to the quotient of (i) the excess of such Combined Cash and Tender Amount over ten percent (10%) of such Aggregate Current Market Price divided by (ii) the number of shares of Common Stock outstanding on such date fixed for determination and (B) the denominator of which shall be equal to the current market price per share (determined as provided in paragraph (8) h) of this SectionSection 9.04) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination.
(6f) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer be completed for an aggregate consideration consisting of cash and/or property having a fair market value (as amended upon determined by the expiration thereofBoard of Directors, whose determination shall be conclusive and described in a Board Resolution) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I1) all Excess Payments the aggregate of the cash plus the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution), of other consideration payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring concluded within the 12 months 365-day period preceding the expiration completion of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6f) has been made and (II2) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) distributions to all holders of the Company's ’s Common Stock made exclusively in cash within 12 months the 365-day period preceding the expiration completion of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5e) of this Section 9.04 has been made (the "combined tender “Combined Tender and cash amount"Cash Amount”) exceeds 12.5% ten percent (10%) of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SectionSection 9.04) as of the last time completion of such tender offer (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended“Completion Date”) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration TimeCompletion Date, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration TimeCompletion Date, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate immediately prior to close of business on the date of the Expiration Time Completion Date by a fraction (A) the numerator of which shall be equal to (i) the numerator shall be the product of (Ax) the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SectionSection 9.04) as of on the Expiration Time Completion Date multiplied by (By) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of on the Expiration Time Completion Date less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the Combined Tender and Cash Amount, and (B) the denominator of which shall be (A) equal to the product of (Ix) the current market price per share of the Common Stock (determined as provided in paragraph (8) h) of this SectionSection 9.04) on the date as of the Expiration Time Completion Date multiplied by (IIy) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date as of the Expiration Time Completion Date less (B) the combined tender number of all shares validly tendered and cash amountnot withdrawn as of the Completion Date.
(7g) The reclassification of Common Stock into securities including other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 9.11 applies) shall be deemed to involve (a1) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "“the date fixed for the determination of stockholders entitled to receive such distribution" ” and "“the date fixed for such determination" ” within the meaning of paragraph (4d) of this SectionSection 9.04), and (b2) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "“the day upon which such subdivision becomes effective" ” or "“the day upon which such combination becomes effective"”, as the case may be, and "“the day upon which such subdivision or combination becomes effective" ” within the meaning of paragraph (3c) of this SectionSection 9.04). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) h) For the purpose of any computation under paragraphs (2b), (4d), (5e) and or (6f) of this SectionSection 9.04, the current market price per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of Volume Weighted Average Price for the last reported sale price of the Common Stock on the Mexican Stock Exchange for 30 consecutive Trading Days commencing not more than 45 Trading Days before, and ending not later than, the earlier of the day in question and the day Day before the "ex" date “ex date” with respect to the issuance or distribution requiring such computation. For purposes of this paragraph, the term " 'ex' “ex date", ,” when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(9i) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9i)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9i) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article 9 shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(10j) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (1a), (2b), (3c), (4d), (5e) and (6f) of this SectionSection 9.04, as it considers to be advisable in order to avoid or diminish any income tax liability to any holders of shares of Common Stock resulting from any dividend or distribution of stock Common Stock or issuance of rights or warrants to purchase or subscribe for stock Common Stock or from any event treated as such for income tax purposes. To the extent permitted by applicable law, the Company from time to time may increase the Conversion Rate by any amount for any period of time if the period is at least twenty (20) days and the Board of Directors shall have made a determination that such increase would be in the best interests of the Company, which determination shall be conclusive. Whenever the Conversion Rate is increased pursuant to the preceding sentence, the Company shall give notice of the increase to the Holders of Securities in the manner provided in Section 1.06 at least fifteen (15) days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate and the period during which it will be in effect.
(11k) Notwithstanding the foregoing provisions of this Section 9.04, no adjustment of the Conversion Rate shall be required to be made (1) upon the issuance of shares of Common Stock pursuant to any present or future plan for the reinvestment of dividends, (2) because of a tender or exchange offer of the character described in Rule 13e-4(h)(5) under the Exchange Act or any successor rule thereto or (3) as a result of a rights plan or poison pill implemented by the Company.
(l) In any case in which this Section 1204 9.04 shall require that an adjustment shall become effective be made immediately after following a determination date for an eventRecord Date, the Company may elect to defer until the occurrence 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 of any series to which this Article 9 applies, converted after such Record Date and on and before such adjustment shall have become effective (i1) defer paying any cash payment pursuant to Section 9.03 hereof or issuing to the Holder of any Convertible such Security converted after such record date and before the occurrence number of such event the additional ADSs shares of Common Stock issuable upon such conversion by reason in excess of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one shares of Common Stock issuable thereupon only on the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.
Appears in 1 contract
Sources: Indenture (Epicept Corp)
Adjustment of Conversion Rate. (1) The Conversion Rate shall be subject to adjustments (or securities or other property other than ADSs representing the right to receive shares of Common Stock may become issuable) from time to time as set forth below. Any adjustment to the Conversion Rate shall take into account the number of shares of Common Stock represented by each ADS before and after each such adjustment.follows:
(1i) In case the Company shall pay or make a dividend or other distribution on any class shares of capital stock of the Company Common Stock payable in shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the date fixed for the determination of shareholders stockholders entitled to receive such dividend or other distribution shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the sum of the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determinationdistribution, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any dividend or distribution is not in fact paid, the Conversion Rate shall be immediately readjusted, effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. For the purposes of this paragraph (1i), 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 will not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Company.
(2ii) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall issue rights, options or warrants (expiring within 45 days after the record date for the determination of stockholders entitled to receive such rights, warrants or optionsin any case other than in connection with a Rights Plan) to all holders of its Common Stock entitling them to subscribe for or purchase shares of Common Stock at a price per share less than the current market price Current Market Price per share (determined as provided in paragraph (8) 3) of this SectionSection 12.4) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights, options or warrantswarrants (other than any rights, options or warrants that by their terms will also be issued to any Holder upon conversion of a Security into shares of Common Stock without any action required by the Company or any other Person), the Conversion Rate in effect at the opening of business on the day following the date fixed for such determination shall be increased by multiplying dividing such Conversion Rate by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such Current Market Price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market pricepurchase, such increase to become effective immediately after the opening of business on the day following the date fixed for such determination. If, after any such date fixed for determination, any such rights, options or warrants are not in fact issued, or are not exercised prior to the expiration thereof, the Conversion Rate shall be immediately readjusted, effective as of the date such rights, options or warrants expire, or the date the Board of Directors determines not to issue such rights, options or warrants, to the Conversion Rate that would have been in effect if the unexercised rights, options or warrants had never been granted or such determination date had not been fixed, as the case may be. For the purposes of this paragraph (2ii), 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 will not issue any rights, options or warrants in respect of shares of Common Stock held in the treasury of the Company.
(3iii) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately increased, and, conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the Conversion Rate in effect at the opening of business on the day following the day upon which such subdivision or combination becomes effective shall be proportionately reduced, such increase or reduction, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective.
(4iv) Subject to the last sentence of paragraph (7) of this Section, in In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock evidences of its indebtedness, shares of any class of capital stock, stock or other property (including securitiescash or assets or securities (other than rights pursuant to a Rights Plan), but excluding (iA) any rights, options or warrants referred to in paragraph (21(ii) of this Section, (iiB) any dividend or distribution paid exclusively in cash, (iiiC) any dividend or distribution referred to in paragraph (11(i) of this Section and (ivD) any distribution consideration distributed in connection with any merger or consolidation to which Section 1211 12.12 applies), the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying dividing the Conversion Rate in effect immediately prior to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution by a fraction of which the numerator shall be the current market price Current Market Price per share (determined as provided in paragraph (8) 3) of this SectionSection 12.4) of the Common Stock on the date fixed for such determination (the "Reference Date") and the denominator shall be the current market price per share of the Common Stock on the Reference Date less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution filed with the Trustee) on the Reference Date of the portion of the assets, shares or evidences of indebtedness so distributed applicable to one share of Common Stock and the denominator shall be such Current Market Price per share of the Common Stock, such adjustment to become effective immediately prior to the opening of business on the day following the Reference Datedate fixed for the determination of stockholders entitled to receive such distribution, or in the case of a Spin Off, immediately prior to the opening of business on the day following the last Trading Day of the Measurement Period. If after any such date fixed for determination, any such distribution is not in fact made, the Conversion Rate shall be immediately readjusted, effective as of the date of the Board of Directors determines not to make such distribution, to the Conversion Rate that would have been in effect if such determination date had not been fixed. In the event the Company distributes shares of capital stock of a Subsidiary, the Conversion Rate will be adjusted, if at all, based on the market value of the Subsidiary stock so distributed relative to the market value of the Common Stock, as described below. The Board of Directors shall determine fair market values for the purposes of this Section 12.4(1)(iv), whose determination shall be conclusive and described in a Board Resolution filed with the Trustee; provided, however, that in respect of a dividend or other distribution of shares of capital stock of a class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company which has a Subsidiary Closing Price (a “Spin-off”), the fair market value of the securities to be distributed shall equal the average of the daily Subsidiary Closing Price of such securities for the five consecutive Trading Days commencing on and including the sixth Trading Day of such securities after the effectiveness of the Spin-off (the “Measurement Period”); provided, further, that in the event that an underwritten initial public offering of the securities in the Spin-off occurs simultaneously with the Spin-off, fair market value of the securities distributed in the Spin-off shall be the initial public offering price of such securities and the market price per share of the Common Stock shall mean the Closing Sale Price for the Common Stock on the same Trading Day.
(5v) In case the Company or any of its Subsidiaries shall make a tender or exchange offer for Common Stock (for the avoidance of doubt, excluding options, warrants, purchase rights and other securities convertible, exchangeable or exercisable for Common Stock), to the extent that the cash and value of any other consideration included in the payment per share of Common Stock in such offer exceeds the Closing Sale Price of our Common Stock on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, and such tender or exchange offer shall expire, then, 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 such offer may have been amended), the Conversion Rate shall be increased so that the Conversion Rate shall equal the rate determined by multiplying the Conversion Rate in effect immediately prior to close of business on the Expiration Date by a fraction of which the numerator shall be the sum of (x) the aggregate consideration (determined as the sum of the aggregate amount of cash consideration and the aggregate fair market value (as determined 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 thereof) of any other consideration) payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the last time at which such tenders could have been made on the Expiration Date (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 (less any Purchased Shares and excluding any shares held in the treasury of the Company) at the Expiration Time and the Current Market Price per share of Common Stock (as determined in accordance with subsection (3) of this Section 12.4) on the Trading Day next succeeding the Expiration Date, and the denominator shall be the product of the number of shares of Common Stock outstanding (including tendered shares but excluding any shares held in the treasury of the Company) at the Expiration Time multiplied by the Current Market Price per share of the Common Stock (as determined in accordance with subsection (3) of this Section 12.4) on the Trading Day next succeeding the Expiration Date, such increase to become effective immediately prior to the opening of business on the day following the Expiration Date. In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanently prevented by applicable law from effecting any or all such purchases or any or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate which would have been in effect based upon the number of shares actually purchased. If the application of this Section 12.4(1)(v) to any tender offer would result in a decrease in the Conversion Rate, no adjustment shall be made for such tender offer under this Section 12.4(1)(v). For purposes of this Section 12.4(1)(v), the term “tender offer” shall mean and include both tender offers and exchange offers, all references to “purchases” of shares in tender offers (and all similar references) shall mean and include both the purchase of shares in tender offers and the acquisition of shares pursuant to exchange offers, and all references to “tendered shares” (and all similar references) shall mean and include shares tendered in both tender offers and exchange offers.
(vi) In case the Company shall, by dividend or otherwise (other than regular or quarterly cash dividends)otherwise, distribute cash to all holders of its outstanding Common Stock (excluding any cash that is distributed as part of a distribution referred to in an aggregate amount that, combined together with (I) the aggregate amount of any other cash distributions (other than regular or quarterly cash dividends) to all holders of its Common Stock made exclusively in cash (and not included in clause (II) of this sentence) within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to this paragraph (5) has been made and (II) the aggregate amount of all Excess Payments in respect of any tender or exchange offer by the Company or any of its Subsidiaries for all or any portion of the Common Stock concluded within the 12 months preceding the date of payment of such distribution and in respect of which no adjustment pursuant to paragraph (61(iv) of this Section has been made (the "combined or cash and tender amount"), exceeds 12.5% of the product of the current market price per share (determined as provided in paragraph (8) of this Sectiondistributed upon a merger or consolidation to which Section 12.12 applies) of the Common Stock on the date for the determination of holders of shares of Common Stock entitled to receive such distribution times the number of shares of Common Stock outstanding on such date (the "aggregate current market price"), then, and in each such case, immediately after the close of business on such date for determination, the Conversion Rate shall be adjusted so that the same shall equal to the rate determined by multiplying the Conversion Rate in effect immediately prior to the close of business on the date fixed for determination of the stockholders entitled to receive such distribution by a fraction (X) the numerator of which the numerator shall be equal to the current market price Current Market Price per share (determined as provided in paragraph (8) 3) of this Section) of the Common Stock on the date fixed for such determination plus the amount per share of such dividend or distribution and (Y) the denominator of which shall be equal to the current market price Current Market Price per share (determined as provided in paragraph (8) 3) of this SectionSection 12.4) of the Common Stock on such date for determination less an amount equal to the quotient of (x) the excess of such combined cash and tender amount over 12.5% of such aggregate current market price divided by (y) the number of shares of Common Stock outstanding on such date fixed for determination.
(6) In case a tender or exchange offer made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire and such tender or exchange offer (as amended upon the expiration thereof) shall require the payment to stockholders of Excess Payments in an aggregate amount that combined together with (I) all Excess Payments payable in respect of any other tender or exchange offer by the Company or any Subsidiary for all or any portion of the Common Stock expiring within the 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to this paragraph (6) has been made and (II) the aggregate amount of any cash distribution (other than regular or quarterly cash dividends) to all holders of the Company's Common Stock within 12 months preceding the expiration of such tender or exchange offer and in respect of which no adjustment pursuant to paragraph (5) of this Section has been made (the "combined tender and cash amount") exceeds 12.5% of the product of the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the last time (the "Expiration Time") tenders or exchanges could have been made pursuant to such tender or exchange offer (as it may be amended) times the number of shares of Common Stock outstanding (including any tendered or exchanged shares) as of the Expiration Time, then, and in each such case, immediately prior to the opening of business on the day after the date of the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate immediately prior to close of business on the date of the Expiration Time by a fraction of which (i) the numerator shall be the product of (A) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) as of the Expiration Time multiplied by (B) the number of shares of Common Stock outstanding (including any -71- tendered or exchanged shares) as of the Expiration Time less the number of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time, and (ii) the denominator shall be (A) the product of (I) the current market price per share of the Common Stock (determined as provided in paragraph (8) of this Section) on the date of the Expiration Time multiplied by (II) the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the date of the Expiration Time less (B) the combined tender and cash amount.
(72) The reclassification of Common Stock into securities other than Common Stock (other than any reclassification upon a consolidation or merger to which Section 1211 12.12 applies) shall be deemed to involve (a) a distribution of such securities other than Common Stock to all holders of Common Stock (and the effective date of such reclassification shall be deemed to be "“the date fixed for the determination of stockholders entitled to receive such distribution" ” and "“the date fixed for such determination" ” within the meaning of paragraph (41(iv) of this Section), and (b) a subdivision or combination, as the case may be, of the number of shares of Common Stock outstanding immediately prior to such reclassification into the number of shares of Common Stock outstanding immediately thereafter (and the effective date of such reclassification shall be deemed to be "“the day upon which such subdivision becomes effective" ” or "“the day upon which such combination becomes effective"”, as the case may be, and "“the day upon which such subdivision or combination becomes effective" ” within the meaning of paragraph 1(iii) of this Section 12.4).
(3) of this Section). Rights or warrants 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 or warrants (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 occurrences of a specified event or events ("Trigger Event"), shall for the purposes of this Section not be deemed issued until the occurrence of the earliest Trigger Event.
(8) For the purpose of (A) any computation under paragraphs (21(ii), (4), iv) or (5) and (6v) of this SectionSection 12.4, the current market price “Current Market Price” per share of Common Stock on any date shall be calculated by the Company and be deemed to be the average of the last reported sale price of daily Closing Sale Prices for the Common Stock on the Mexican Stock Exchange for 30 10 consecutive Trading Days selected by the Company commencing not more than 45 20 Trading Days before, and (I) in the case of paragraphs (1)(ii) or (iv) of this Section 12.4, ending not later than, the earlier of the day in question date fixed for determination and the day before the "“ex" date -date” with respect to the issuance or distribution requiring such computation or (II) in the case of paragraph (1)(v) of this Section 12.4, ending not later than, the Expiration Date with respect to the tender offer requiring such computation; and (B) any computation under paragraph (1)(vi) of this Section 12.4, the “Current Market Price” per share of Common Stock on any date shall be calculated by the Company and be the average of the daily Closing Sale Prices for the first 10 consecutive Trading Days from and including the first “ex-date” with respect to the dividend or other distribution requiring such computation. For purposes of this paragraph, the term " '“ex' -date"”, when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way in the applicable securities market or on the applicable securities exchange without the right to receive such issuance or distribution.
(94) No adjustment in the Conversion Rate shall be required unless such adjustment (plus any adjustments not previously made by reason of this paragraph (9)) would require an increase or decrease of at least one percent in such rate; provided, however, that any adjustments which by reason of this paragraph (9) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article shall be made to the nearest cent U.S. $0.01 or to the nearest one-hundredth ten-thousandth of a share, as the case may be.
(105) The Company may make such increases in the Conversion Rate, for the remaining term of the Convertible Securities of any series or any shorter term, in addition to those required by paragraphs (11)(i), (2ii), (3), (4), (5) and (6) of this Section, as it considers to be advisable in order to avoid or diminish any income tax to any holders of shares of Common Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to purchase or subscribe for stock or from any event treated as such for income tax purposes.
(11) In any case in which this Section 1204 shall require that an adjustment shall become effective immediately after a determination date for an event, the Company may defer until the occurrence of such event (i) issuing to the Holder of any Convertible Security converted after such record date and before the occurrence of such event the additional ADSs issuable upon such conversion by reason of the conversion rate adjustment required by such event over and above the ADSs issuable upon such conversion before giving effect to such conversion rate adjustment and (ii) paying to such Holder any amount in cash in lieu of a fractional ADS pursuant to Section 1203; provided, however, that the Company shall deliver to such Holder a due ▇▇▇▇ or other appropriate instrument evidencing such Holder's right to receive such additional ADSs, and such cash, upon the occurrence of the event requiring such adjustment.
(12) The initial Conversion Rate reflects that as of the date of this Indenture, each ADS represents 20 L Shares. If the number of L Shares represented by an ADS should change, whether in conjunction with one of the foregoing adjustment events or otherwise, the Conversion Rate (as so changed) shall be adjusted proportionately.,
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Sources: Indenture (Solectron Corp)